Teer eT SSR SENDS SHUTS EINE ane ee REAM lee acne POST bebe td ee WL hh pd bt be ae Ai ate Gitte Ieee LSC IT) Dune) vy) et eh arora by eiare eye erste sie] oldie] €* at) reich) Dowie RUT: BL i : os wae i es) uot Saat) eae beeen br beat oc rt Pett) pera) mint Mi bebe meet ai Heese al R iets 1 i i Pnveee at t} 0 + Mui ‘ eataheh ba) iris! Lieishen tio teeth 4 Wh Dutt eh iit mh OU Nba bebe) ‘40h’ PLA’ atta) CMs ks by bs be efor O32 TL Gornell Lam Schonl Library Cornell University Library FN5995.G46 ment to Fiero on Special action “iain 3 1924 022 786 143, ow SUPPLEMENT To FIERO ON SPECIAL ACTIONS 1908-1919 AND SPECIAL PROCEEDINGS 1912-1919 THIRD EDITIONS EDITED BY FRANK B. [GILBERT and AUSTIN B. GRIFFIN OF THE ALBANY BAR © ALBANY, N, Y.: MATTHEW BENDER & COMPANY, INCORPORATED, 1919. CoprricHT, 1919 BY MATTHEW BENDER & COMPANY, INCORPORATED. aus PREFACE This Supplement to Fiero on Special Actions, Third Edition 1908, and Fiero on Special Proceedings, Third Edition 1912, was made to supply the demand of the profession to cover the eleven years and seven years respectively since the Third Editions were issued. The alphabetical or cyclopedic arrangement of the Third Editions has been followed with page references to said Editions under each chapter and subdivision. Amendments to the Code of Civil Procedure and the Con- solidated Laws, and decisions of the courts from the date of the Third Editions to July, 1919, have been inserted under the chap- ters and subdivisions to which they relate. FRANK B. GILBERT, AUSTIN B. GRIFFIN. Auzany, N. Y., September 10, 1919. 1li TABLE OF TITLES OF SPECIAL ACTIONS (For Table of Special Proceedings, see post, p. xv.) s PAGE. Actions, Survival of, see Decedents’ Estates............. 00. e eee 82 Alimony, see Matrimonial Actions............. 6... eee eee ence eee 266 Annulment of Marriage, see Matrimonial Actions....................0. 205 Assignment and Assignability of Demands.........................0.. 1 I. Right to Assign at Common Law and Under the Statute...... 1 II. What Claims Are Assignable............. 0... ccc cece eee eee 3 III. What Claims Are Not Assignable..................00.0.000- 4 V. What Constitutes an Assignment.................0. 000 eee ee 4 VI. What Passes Under an Assignment.....................0008. 6 Associations, see Unincorporated Associations..................0.0 000. 553 Bond, Penal, Action Upon, see Miscellaneous Actions and Rights of NGCELONS sa aapinua equa send nese aaeleeasint gs a CoE Ladin OED e AA 420 Chattels, Action to Recover, see Replevin.............. 0.0 e cece eee 539 Chattels, Foreclosure of Liens Upon.................... 00. e ee eee eee 8 Claim to Real Property, Action to Determine.....................2.... 10 I. Nature and Object of Action............. 0... e cece eee eee 10 II. When Action Maintained and What Must Be Alleged......... 10 III. Proceedings After Issue Joined..................0000.00 0000 18 IV. Judgment and Its Effect... 2.5.00: cceesi ee scceeeceeensewess 18 Corporations and Receivers of Corporations........................000. 20 I. Provisions Relating to Practice in Actions by or Against Corporationss.5 1a je. ccs aeai Gteanness oad cya wegaeeehe Sala 21 1. Complaint in Actions By or Against Corporations....... 21 2. When Foreign Corporation May Sue and Be Sued....... 22 3. Waiver of Misnomer and Proof of Corporate Existence. . 30 4, Restrictions on Defense by Corporation in Suit on Note. 32 Il. Judicial Supervision of Corporation and of the Officers and Members: Thereof 2 va dsessccsceeaad ti auehabosensangs 32 1. Action by Attorney-General. .......... 0... ..0. 0.0 eae 34 2. Action by Creditor, Stockholder or Trustee............. 36 IIa. Action Against Officers by Corporation or Receiver........... 43 III. Action for Dissolution of Corporation and to Enforce Liability of Officers and Stockholders.....................0.005 44 1. Action by Judgment Creditor for Sequestration......... 45 2, Action to Dissolve a Corporation...................0008 46 8. Temporary Injunction ........... 0... cece eee eee 48 A TROGELY OB 5,25 sy do sca dat Rand. cd Wa eer HR DI RDI dwar eetinncenneNs. wes Re 48 5. When Action Maintained Against Stockholders and Officers. 5 _- sudistavyasazevecamiaeee esse das dkdauncdes 49 6. Judgment and Its Provisions........................00. 50 IV. Action to Annul a Corporation.............. 000: c cee cece eee 51 1, Action, When and How Brought and Tried.............. 51 2, Judgment, Injunction and Receiver..................... 54 v : é v1 TABLE OF TITLES OF SPECIAL ACTIONS. Corporations and Receivers of Corporations — Continued. V. Provisions Applicable to Actions Under This Chapter.......-. 1. Exceptions to Operation of Article. .......-.-++++rereee 2. When Duty of Attorney-General to Bring Action....... 3. Creditors May Be Brought in........--..-+seee reese eee 4, Injunction and Its Requisites..........++++seees rere eee 5. Miscellaneous Practice Regulations. ........+--+++--++-> 6. Receivers... 0 0... cece cee teen eterna VI. Statutory Provisions as to Receivers of Corporations......... VIL. Jurisdiction to Appoint Receiver Under the Decisions, and When Exercised ....... 00.00 ee cece teens 1, Jurisdiction of Court to Appoint Receiver........----.-- 2. When Court Will Appoint Receiver.........-....--+++- VII. Appointment and Qualification of Receiver.....-.....-..++--: 1. Proceedings to Obtain Appointment..........-..-.-.5-- 2. Who May Be Appointed.............55 50-0 se eevee eee 8. Receiver’s Bond and Liability.........-........220 2205 IX. Rights, Powers and Duties of Receiver..............--...-5: 1. Title of Receiver to Property...........+2..0:e seer eee 2. Powers, Duties and Liabilities of Receivers............. 8. Counsel and Their Compensation............-..+.2+5-+5 X. Discharge of Receiver........... 066 cee eee eee ee eee eee 1. Removal of Receiver............. 0. cece erence eee eee 2. Compensation of Receiver.............0 000. ee ee eee ee 8. Accounting by Receiver............... 00 cece eee eee County Officers, Action By or Against, see Officers, Actions By or APRINSE 93g LAtdamafia cc eeyeeisen se Mee tterere sens maSeamNe Se Creditors’ Bill, see Judgment Creditors’ Action...............-...-2--- Creditors of Estates, Remedies, see Decedents’ Estates................. Damages, Treble, see Real Property, Provisions Relating to; Waste. .518, Decedents’ Estates: os2 ccswinsaangeasdew ype eee siege tau cake Sea chaneanes I. Code and Statutory Provisions Authorizing Actions.......... II. Action, How Brought and Conducted, and Effect of Judgment. 1. When Action Proper in Representative and When in Tndivid Wal "Capacity \0.0c0. 6 cave. degieys iad Stokes audeardie cus ae de 2. When Personal and Representative Actions Joined...... . What Actions Survive and What Abate by Death....... 4. Powers of Executor of an Executor and Executor in His Owal Wrong? sss: 22¢ig249e46 5455 hoe ets e see lan 5. Regulations as to Parties.....................00 00000. III. Limitation of Action by Creditor on Rejected Claims......... IV. Costs in Actions Against Executors or Administrators........ V. Action by Legatee Against Executor, and Its Effect.......... VI. Judgment and Execution Against Executors.................. VII. Miscellaneous Practice Provisions......................2224. la. Actions by Foreign Executor or Administrator......... 5. Rights, Powers and Duties of Executors and Adminis- LTACOIB Ss 8 wadding ee RO eed cas maaan eye ey VIII. Actions Against Next of Kin, Legatees, etc................... IX. When Action Lies Against Heirs and Devisees................ X. Regulations Peculiar to Actions Against Heirs, Legatees, etc. ow 73 74 448 193 76 559 76 76 81 81 81 82 82 82 83 89 91 92 93 93 94 94 95 98 TABLE OF TITLES OF SPECIAL ACTIONS. Decedents’ Estates — Continued. XI. When Action Will Lie to Establish or Impeach a Will........ i. When ctetion Wilh Tis, 4.0 .csanvecnscunesvaccuanas yond 2. Proof Necessary to Establish Lost Will................ XII. Actions to Establish and Construe Will and Effect of Article.. XIII. Action to Determine Validity of Will................ anne eae XIV. General and Miscellaneous Provisions as to Estates........... Determine Claim to Real Property, see Claim to Real Property, Action to Determine . vanciiieid snes ones eieesas roses Nagas ensue nesaes Divorce, see Matrimonial Actions............. 0.00 e cence eee eee DOW? geseysa GU e wun wsanciemt mena eeantetannesaaa maaan ta I. The Right of Dower. ........ 0... cc cece eee ene eens 1. Origin and Nature of Dower...............4. eee ee eee 2, When and in What Lands Widow Entitled to Dower.... 3. When Dower Not Allowed in Lands Exchanged or Mort- gaged for purchase money..................0-00eee 4. Pecuniary Provisions in Lieu of Dower and Election.... 5. How dower Is Released or Barred...................055 6. How Dower Affected by Divorce...............-...0055 7, Right of Widow to Quarantine and Crops....,.......... III. The ‘Remedy and Parties to the Action....................... V. Interlocutory Judgment for Admeasurement of Dower VII. What Damages May Be Recovered in the Action............. VIII. Agreement to Accept Gross Sum, and Proceedings Thereon... IX. Final Judgment and Its Effect............. 0.0.0.0... 0 00a WJEC CUMEN GS i555 Gil tihKisee mG ES CaRK GH eadasns heed SURE AER Sie nee aS I. Nature and Purpose of the Action.....................00008. II. When the Action-Can Be Maintained.....................0.. III. When the Action Will Not Lie............... 0... eee eee eee 1. Mortgagee Cannot Maintain Ejectment................ 3. Limitation as to Strip of Land.....................5.. 4. When Action Cannot Be Maintained................... IV. By Whom the Action Can Be Maintained.................... 1. One or more joint tenants................... cee eee eee 2. Grantee of Lands Held Adversely...................04. 3. Persons Vested with Right to Immediate Possession. ... V. What Is Necessary to Entitle Plaintiff to Recover............ 1. Plaintiff Must Recover on the Strength of His Own Title. 2. When Possession Gives Presumption of Title............ VI. Who May Be Defendants and Who Must Be Joined as Such.. VID. The Complaint: saciuicis desde sseyeang calsoewed back esa dnews IX. Defenses Legal and Equitable and How Pleaded.............. 1, Defenses Generally ......... 0... ccc cece tee eee eee 2, Adverse Possession as a Defense Ky Practices 6a4 ves vergagys temeew ee heacya SEaMeERNEe Co eta Ys Rand XI. What Rents and Profits Are Recoverable and Receivership. ... XIII. When Action Will Be Severed XIV. Evidence... . RVs Verdletirs hh cade ad cee eae ese eee hea oie ed towed aaa an XVI. New Trial and Its Effect and Evidence Thereon XVII. Effect of Judgment XVIII. Costs in Ejectment vil PAGE. 99 99 100 101 102 102 10 229 104 104 105 105 107 108 112 113 114 115 116 116 117 118 119 119 119 120 120 121 121 122 122 123 123 124 124 127 127 128 130 130 131 137 137 138 138 140 141 142 vill TABLE OF TITLES OF SPECIAL ACTIONS. Foreclosure: ...i-3 ccicuaseaises syebh eae nea gsGooG3 4 BREUER dae eo rtanas I. Nature of the Action and Courts Having Jurisdiction........ II, When Action Maintained............. 00 ee eee eee tee eee III. Parties Plaintiff and Defendant.............0. eee eee eens IV. Complaint and Notice of Pendency of Action...........-..-. V. Answers and Defenses............ 0.00: cece eee eee teenies 1. Answer Generally .......... ital warms eM OAet pee e 2, Counterclaiings, @ goss anentoeecthd tons oR Ame yas PEA O SS 3. Tender as a Defense...........2-000 cc seer eee eeeneeeeee 4. DEMUPLETy so See pa LAA He BSE ag SOM NSE Hane 5. Relief Granted Defendants...............-.: eee ee eee ee VI, Matters. of Practice... ccescgacan cn cons coe SOS E EG BOR REE YS 2. Guardian Ad Litem for Infant Defendant............... 3. Miscellaneous Rules and Decisions................-+--- 4, Evidence: ..: sseseaernas ches yagaccsi ree in sie cmeneeaan s Die Drala ag ARS aS eeaN SEG SEAT DERE RE AS RAN eee RGR Guay 6. Stay of Proceedings. .............. 20: e eee ene eee eee 7. No Other Action to Be Brought........-....-..--.2+--- 8. Receiver, When Appointed, Powers and Duties.......... 9, Costes ie ev wagtdignsantieesonietenmeniiadas Paw ais so emi ease ete eee VII. Reference to Compute Amount Due.................0.0.005- 1, Order of Referencés:: 0304230458 508 gy eees saa da sep ones 2. Duties and Report of Referee................-0 00. eeu VAL. JUS eI, of ok cre enka Ah atacnd Geadilinluusloaiels Avda Tdezuce elisa sonal 1. Judgment, the Character and Extent of Relief Granted. . 2. Effect of Final Judgment and Conveyance.............. 8. Motion to Vacate Judgment and Appeal................ TX. Sale and Confirmation. ............. 0.000 c eee eee eee Xx. Judgment for DefiGieney 220.05. cetingaeee cee se PSak URGE XI. Proceedings When Mortgagee’s Debt Not All Due............ XI Surplus. Proceedings: 2¢ .00 taincscad vauianemennse rane eg anwee oe 1. Rights of Parties to Surplus....... HiAe ARSE eae Hey 2. Method of Distributing Surplus........................ 3. Costs and Appeal from Order in Surplus Proceeding... .. Foreclosure, Mechanic’s Liens, see Mechanic’s Liens.................... Foreclosure of Liens on Chattels, see Chattels, Foreclosure of Liens on. . Joint Debtors, Actions and Rights of Action By and Between........... I. Judgment and Execution Against Defendants Jointly Indebted When All. Are Not Served....... 0.00... c cece eee III. Composition by One of Joint Debtors....................0.0.. V. Actions Against and Between Partners...................... Joint Tenants, Action By, see Hjectment..................0..000. 00005 Judgment for and Sale of Real Estate, see Real Property, Provisions REAHNE tO. a .cercrnamamage 44 ne ne ar ciewes pee dy ag Bhhedeeass boos Judgment, When Assignable, see Assignment and Assignability of Demands, 2 avgwiadgan vane sy ences era Oks doo sbsammtaweaaa eules Judgment, Action Upon, see Miscellaneous Actions and Rights of Action. Judgment Creditor’s Action................ 0.0 I. When Action Can Be Maintained.....................0.0..., 1. Nature and Scope of Action.............0.0..0..0..0... 2. Action Under the Code................. 0. ...00.00 0000. 144 144 145 147 151 154 154 158 159 160 161 162 162 163 165 166 167 168 169 172 173 173 175 176 176 19T 180 180 181 183 184 184 187 187 312 188 188 189 191 122 419 193 193 193 194 TABLE OF TITLES OF SPECIAL ACTIONS, Judgment Creditor’s Action — Continued. , 8. Action in aid of execution........... 00... cece eee ee eee 4, Action Under Equity Powers of the Court............. 5. Action in Aid of Attachment......................000., 6. Action by assignees, receivers, etc...............0..00.. II. Fraudulent Conveyances and Transfers...................... 1. Essential Elements of Fraudulent Conveyances......... 2. Voluntary Conveyances ............ 0 cece cece eee e eee 4, Consideration as Affecting Legality of Transfer......... 5. Fraudulent Intent and Knowledge..................... LV Pleadings ies cy iandeds corner deste eion ad ne ee ane es Mae aa TER D, Complaints 4) e455 20k EA ORES COREE SAGA an ee aae Z. Answer and Defenses... iayinniech esa cadaa tinea enone Vi Matters of Practic@osc cic gucsers sa ammaa ana c ee weapdintiann eee oo Wi EVIGenes ¢ ose aciwstayees aicgecevasmegiil dengaeige aRAeeEe ENS VIII. Judgment, Its Form and Effect................... 0. .e eee Judicial Sales, see Real Property, Provisions Relating to............... Liens on Chattels, Foreclosure of, see Chattels, Foreclosure of Liens MDOT seit ay cand dav arairgaionndarae. Soe PaP Be lord avaneneusnecns Riel PA nears. dachuacanaseelenay LON Lost Negotiable Paper, Action on, see Miscellaneous Actions and Rights Of ACHOM 2043 cceds manseeoRe 44404 eeehE Sed ine a leads SERRE RER OLE Matrimonial Actions ............ 0.0... c ccc cee cette eens Action to Annul Void or Voidable Marriage......................4.. I. General Provisions as to Action to Annul.................. II. Marriage Annulled on Ground of Infancy.................. II. When Voidable, Former Husband or Wife Living........... IV. When Annulled for Idiocy or Lunacy...................005 V. When Voidable for Force, Duress, or Fraud................ VI. Action on Ground of Physical Incapacity................... VII. Alimony Pendente Lite......... 0... ccc cece cece eee eee VIII. Order for Jury Trial and Judgment, How Obtained and Effect: on Judgments sascce vse rcs eyareerse dkantee ces ramnees ACR fOr DIVOLCE secu caca dan enndewts See aa sesaodame etn aaa aote IX. When and How Action for Divorce Maintained............. XK Complaint. os: yrracigsawnsge ee tesk sede beeeeb yee deadsees IMT, DELERSER:: (circa $d ochdeenpioann enepalddioda aise wajauonneseaten Nouba ilanb and 1, COWNMSION.. 0. 5 cid cei tenasase dee ead mame pha eames 2, Condonations a5 2.3 siscsedy sae esaeu sewed spanned s swe 3. Action Not Brought Within Five Years............... 4. Plaintiff Guilty of Adultery.....................00.. 5, Foreign Divorces: 3 siciisinas sea aewi we odeanewedan vaaawang 6, Other Defenses: 2 aes sasisesverenssvard etme ieeyeear ax XII. Rights of Co-respondents............... 0000. e eee e eee XIII. How Judgments to Be Taken by Default.................. XIV. Trial by Court or Referee. ........ 0... eee ee 1, Framing Issues and Jury Trial................--25.- 2. Trial by Court or Referee.................-...00000% 3. Report of Referee and Application for Judgment...... XVI. Interlocutory and Final Judgment on Report or Decision. .. 1. Specific Regulations with Reference to Judgment...... 1x PAGE. 195 195 197 197 199 200 200 200 200 201 201 202 203 203 203 522 421 205 205 206 209 213 219 221 226 228 228 229 229 230 230 230 231 231 232 232 237 238 240 240 240 242 243 243 x TABLE OF TITLES OF SPECIAL ACTIONS, Matrimonial Actions — Continued. Action for Divorce — Continued. 2, Mi ect, Of ud oMenh), ones gre ge akee on? SaF esau ds ad eels 8. Modifying or Vacating Judgment.................... XVII. Remarriage, When Allowed. .......... 0.0000. ce eee eee Action for Separations. eo css nedacscad-vgiandaieion y Sid dedi ie 94s meghdsenaeare a dats XVII, For What Causes and in What Cases Action for Separation Maintained, asada keke aewlgnting Ra daaneaGe ap Ree mne 1. JUTISdICMIONS vo cit uu cvertesdeeeen ae eadnee aeten es 2. Cruel and Inhuman Treatment..............0...2... 3. Abandonment and Failure to Support................ SIS, Pleadings: and Grid ncocnsaiotsa dae euaeine eam. patacane oe nes U. “Gomplainty, 20 agi grtaiacqenininss de eee dens onliginn aa Ta, Reply: s axeeeqeudeddure yh oy aeeseeeteias teeaean ys Bi DANIS WET Sooo eae nhae ma cedicatpenaeiya hein e-ethe Wp baaiibeliene ob Se EMA, ss Rata d Aue emannsblc en Reina eee hamROCne Bi.) NAD ETI CC 5 eos). avinasa eam aed enepeaegen std aa BR NanGug nat eR AOR XX. Judgment, What to Contain and When Revoked........... Provisions Applicable to Matrimonial Actions....................... XXII. Indorsement of Process and Proof of Service............... XXITI. Answer and Counterclaim. ................ 0.0 c eee eee eee XXIV. Miscellaneous Matters of Practice................--.00005- XXV. Alimony and Counsel Fees............. 00. cece eee eee EV TO VAGOMCE Lo ain oiceun HV a Bakded Haus seus datnlele > ad NARANBONOR Atohave nuda ; Ly Prootiok Marmiage. oi isc cc eaciancamnnenensinack aed 2. Testimony of Husband or Wife.....................- 3. Evidence to Prove Adultery.....................00.. 4. When corroboration Required....................... 5. Collusion, Procurement, Connivance.................. 6. Admissions and Confessions...................00000. 7. Evidence in Actions for Separation.................. SAVAL IUGEMen te su sawn ov ese daauis o24- US Siegen eee ase 1. Interlocutory and Final Judgment on Default........ 2. Interlocutory and Final Judgment on Report or DOCISIOMy . _ < pussinesicn anh y daaceuwe neal Oaecemina eile’ 4. Provisions for Custody of Children in Judgment...... 5. Modification of Judgment....................0000... XXVIII. Judgment for Alimony, How Enforced..................... XXIX. Costs and Appeal......... 0... ect e eee Mechanics’ Liens: sx ccwe. seen eee te eee s 54 HiGw eden cage dene vedeaa as I. Nature and Extent of the Remedy....................0.000.. 3. Constitutionality and Construction.................... #6 DONMEIONS, aod 9 aenudina ceamieintatinino side's age ws aisha we MOR II. By and Against Whom, and on What Property Lien May Be ACQUINCD sec soc cus sia oak ab mene nang eopaeaRe ioe eabee 1. By Whom Lien May Be Filed..................0.0...... 2, Against Whom Lien May Be Filed..................... 3. To What Property Lien Attaches and for What........ III. Notice of Lien, Filing and Service of Copy................... 1. Contents: of Notices ci. ccccsioa suinnsiedsavernebetawwsaas PAGE. 243 245 247 248 248 249 250 254 255 250 257 257 258 259 260 262 262 265 266 266 279 279 279 281 286 286 287 287 287 288 288 291 294 297 311 312 312 312 314 319 319 328 330 332 332 TABLE OF TITLES OF SPECIAL ACTIONS. xl Mechanics’ Liens — Continued. PAGB. 2. Verification of Lien.......... 06. cee eee eee 343 3. Filing and Service of Copy of Notice.................-. 344 IV. Priority of Liens and Rights of Parties..................... 348 1, Preference in Payment............... 0. cee cece eee 348 2. Rights of Sub-contractors........... 066. c cece eee eee 352 3. Miscellaneous Provisions as to Rights of Parties........ 354 V. Payment in Advance and Demand for Terms of Contract..... 355 VI. Effect of Assignment of Lien or Contract.................... 357 Via. Subordination of Liens After Agreement with Owner or Con- tlACtOTS « 45 Rag ceed een eee eee aes cuca ea Sawede See ec eKes 364 VII. Duration of) Lieticsc.ccge eaten. pawl ae eRe ee ard SSE eas 368 VIEL, Discharge Of ICN, occas enacted Petts hea sd em eaieeee YOR Rea 372 IX. Building Loan Contract to Be Filed..............-.......000, 381 X. Lien for Public Improvements................. 0000 e ee eee 383 XI. Liens for Labor on Railroads...................22.. Aico poh es 400 XII. Enforcement of Liens........... 0... cece cece es 401 1, VULISMICION:. 4. 45 wo aca tocar aaiewsiw gle et La aiaggeais ceeces 401 Oy BAYUCS: as cn sy euuimakynsne cee ear wen ours as Sane see 405. De; PACAOUIN Gs 3.38 8 ans Gareitods a eae Se vip awe oe ae ee eaten semied 407 By SPEACEICE 2 i.0d Ad. og dave Algancd hel DAs Sided ERROR eS PASS 412 6. What Constitutes Substantial Performance............. 413 A MGOSES sf: gid agate anes ealethiate aa costa oe ievaldaew. Woe sek ey es 414 SIT: Judgments wc sears byte 4 one Ghewink a ey seeds +Adceeoe ¥esues « 415 Miscellaneous Actions and Rights of Actiom.........................5. 419 I. When Judgment Can Be Sued............. 0.0... seen 419 III. Action on a Penal Bond............... 2... c eee eee e eee 420 Y. Action on Lost Negotiable Paper....................00200005 421 Miscellaneous Actions on Behalf of the People, see People, Actions on DeWalt: Gbve cisutieuiyaarh aaa wied se Gkeeeaeveinda weeded aden oan re DRA Abo ae 504 Mortgage Foreclosure, see Foreclosure... ...0..ccecsceeceecceeceeueees 144 Municipal Officers, Action By and Against, see Officers, Actions By or AGMNBSG ioe eadaghel sd slesews MoRRaa RE ees EES EROESE SESS eRe ee Ee SH 448 Negotiable Paper, Action on, see Miscellaneous Actions and Rights of Actions. ... .......... iia can Paes Le Leeks en eMeeRER TA ene e sea 421 Nuisance. ... ............ CRAP ead mea a Gaerne waa mae De Ronee 422 Lo MDennitionsi ss); &itens ea aiwasisitbaenvens hack eee pGOes eee sees 422 II. General Classification and Distinction....................... 424 1. Public and Private Nuisances Distinguished............. 424 2. What Constitutes a Public Nuisance................... 424 AY When; Action. Ties. .cecrnginsae@euree rye couse eehese ee rene ats 426 1. General Principles Governing Rights of Parties......... 426 2. Effect of Legislative Action.............0. 0000 e cece eee 427 3. Rights and Liabilities of Municipalities................. 427 IV. What Constitutes Actionable Nuisance.................0.0.. 429 Viz ROMEGIESs ao deat s S84 edd dees Al Dad ada lacaidunree cae sdebe 434 VI. Who Can Maintain the Action............000000c cc cee eevee ee 435 VII. Defendants and Defenses................0000 ccc ee cee eueenee 436 VIII. Pleading, Practice, and Evidence.................0...0.000005 438 Ts Pleading joie sian hatineeie pe enne phe 4 aranwvalee dadewe aumiee 438 Xll TABLE OF TITLES OF SPECIAL ACTIONS. Nuisance — Continued. 2h: PEACUICE: o9 os dane dann Ghia e Ved me GHEE ERE RET Te SOE Videnc). opp koness whee Cea aad eeeedae SRL ee SE IX. Relief Granted and Measure of Damages............--++5+-++ 1, Dama pesinc iss oisavierssveesngeeegagd Pocesmer era tte 2. Tnjunebion, 2. 2 hesance eg honk 603 Sawa Steers Officers, Actions By or Against............ 0... cece eect eee teens I. Action by Taxpayer Against a Public Officer..............--- 1. Code and Statutory Provisions..........-...-6. +2555 2. When Action Lies....... 0... eee eee 3. When Action Does Not Lie............. 65. eee eee eee 3a. Inspection of Books and Papers of Municipality........ 4. Parties and Proceedings............--+ esses eee eens 5: Pleading. 9 -ciasssengeeo ¢9945 58. eeeeeter enna sseces 6. Bond and Injunction............... 0.0 c eee ee eee eens II. When and in What Manner Actions Maintained By and Against CertainsO icers) . 110 N. Y. Supp. 611. Where a widow does not comply with section 201 of the Real Property Law for the purpose of a transfer tax proceeding she will be presumed to have elected to take under the will, unless she is entitled to have her dower in addition to the testamentary pro- 112 DOWER. vision made for her. J/atter of Sluyvestant (1911), 72 Mise. 295, 131 N. Y. Supp. 197. When wife deemed to have accepted legacy in lieu of dower. Matter of Lockwood (1917), 101 Mise. 177, 167 N. Y. Supp. 457. A wife, for a more favorable adjustment of the transfer tax, has a right to assert dower in specific lands devised to her by her husband, and in the possible case that she shall find that claims of creditors may intervene between the gift and its enjoy- ment. But where, in addition to such devise of the residuary estate in trust, the income thereof to be equally divided between testator’s wife and son, the will provides that if the son dies dur- ing the lifetime of his mother one-half of said income shall go to his surviving child or children share and share alike, and directs that upon the death of testator’s wife all the estate shall go to the son, and in event of his death before hers then upon the death of testator’s wife all of the estate is given to the child or children of his said son, the widow is put to her election between dower and the provisions of the will as to lands other than those specifically devised to her. Matter of Springsteen (1914), 86 Misc. 389, 149 N. Y. Supp. 278. Subd. 5. How Dower Is Released or Barred. (Fiero, Spec. Act., 38rd Ed., pp. 459-467.) Real Prop. L., § 206. Divorced woman may release dower. A woman who is divorced from her husband, whether such divorce be absolute or limited, or granted in his or her favor, by any court of competent juris- diction, may release to him, by an instrument in writing, sufficient to pass the title to real estate, her inchoate right of dower in any specific real property theretofore owned by him, or generally in all such property, and such as he shall hereafter acquire. Formerly Real Prop. L. (L. 1896, ch. 547), § 186. (See B., C. & G. Consol. L., 2nd Ed., p. 7422.) Real Prop. L., § 207. Married woman may release dower by attorney. A married woman of full age may release her inchoate right of dower in real property by attorney in fact in any case where she can personally release the same. Formerly Real Prop. L. (L. 1896, ch. 547), § 187. (See B., C. & G. Consol. L., 2nd Ed., p. 7422.) An oral agreement by a husband, to which his wife is not a party, to give “a proper and sufficient mortgage ” upon property in which he owns a half interest to secure the payment of moneys DOWER, 113 advanced for the payment of taxes, water charges, insurance, etc., has no effect upon the wife’s dower rights. Meixel v. Meizxel (1914), 161 App. Div. 518, 146 N. Y. Supp. 587. The wife of the mortgagor having joined in the mortgage, thereby released her right of dower so far as necessary to protect the plaintiff in the enforcement of the mortgage. Schanz v. Sotscheck (1915), 167 App. Div. 202, 152 N. Y. Supp. 851. Subd. 6. How Dower Affected by Divorce. (Fiero, Spec. Act., 8rd Ed., pp. 467-470.) Real Prop. L., § 196. When dower barred by misconduct. In case of a divorce, dissolving the marriage contract for the misconduct of the wife, she shall not be endowed. Formerly Real Prop. L. (L. 1896, ch. 547), § 176. (See B., C. & G. Consol. L., 2nd Ed., p. 7414.) Real Prop. L., § 202. When provision in lieu of dower is forfeited. Every jointure, devise and pecuniary provision in lieu of dower is forfeited by the woman for whose benefit it is made in a case in which she would for- feit her dower; and on such forfeiture, an estate so conveyed for jointure, or devised, or a pecuniary provision so made, immediately vests in the person or legal representatives of the person in whom they would have vested on the determination of her interest therein, by her death. Formerly Real Prop. L. (L. 1896, ch. 547), § 182. (See B., C. & G. Consol. L., 2nd Ed., p. 7421.) A divorce a vineulo matrimonit obtained by the wife in another State, although for a cause not recognized as ground for absolute divorce in this State, does not, in effect, release and bar her claim to dower in property in this State owned by the husband during the marriage, although after acquired lands are not subject thereto. Van Blaricum v. Larson (1912), 205 N. Y. 355, affg., 146 App. Div. 278, 130 N. Y. Supp. 925. An action for divorce does not survive the death of a party- Hence where a husband has obtained an interlocutory decree against his wife, and he dies before the entry of the final decree, she is entitled to dower. Byron v. Byron (1909), 184 App. Div. 220, 119 N. Y. Supp. 41. Where a wife, as complainant, procures a rabbinical divorce, acquiesces in the remarriage of her husband, and is herself sub- sequently remarried and lives with her second husband for twenty- three years, she is estopped from claiming dower in the lands of her first husband which had been conveyed by him to bona fide 8 114 DOWER. purchasers by deeds in which his second wife joined, releasing her dower. Kantor v. Cohn (1918), 181 App. Div. 400, 168 N. Y. Supp. 846; 98 Mise. 355, 164 N. Y. Supp. 383. When a man goes to another State, leaving his wife and chil- dren here, and obtains a judgment of divorce against her upon constructive service of the process upon her and without actual service, such judgment is invalid; and the wife is entitled to dower in the lands of her husband in this State after his death. Halter v. Van Camp (1909), 64 Misc. 366, 118 N. Y. Supp. 545. Subd. 7. Right of Widow to Quarantine and Crops. (Fiero, Spec. Act., 3rd Ed., p. 470.) Real Prop. L., § 204. Widow’s quarantine. A widow may remain in the chief house of her husband forty days after his death, whether her dower is sooner assigned to her or not, without being liable to any rent for the same; and in the meantime she may have her reasonable sustenance out of the estate of her husband. Formerly Real Prop. L. (L. 1896, ch. 547), § 184. (See B., C. & G. Consol. L., 2nd Ed., p. 7421.) Real Prop. L., § 205. Widow may bequeath crop. A widow may bequeath a crop in the ground of land held by her in dower. Formerly Real Prop. L. (L. 1896, ch. 547), § 185. (See B., C. & G. Consol. L., 2nd Ed., p. 7422.) In the absence of other proof as to its value the forty days’ sustenance should be allowed to the widow at the rate paid for her board during the decedent’s lifetime. Matter of Stiles (1909), 64 Mise. 658, 120 N. Y. Supp. 714. In a proceeding to distribute surplus moneys arising upon a mortgage foreclosure, the widow of a mortgagor, who continued in the possession of the mortgaged premises during the period between the expiration of her quarantine and the delivery of the referee’s deed, is chargeable with only two-thirds of the value of such use and occupation. Schueler v. Levy (1911), 73 Mise. 25, 130 N. Y. Supp. 600. Reimbursement of a widow may be made for sums expended by her for reasonable support and maintenance during her quarantine. Matter of Brown (1912), 77 Mise. 507, 1837 N. Y. Supp. 978. Where a widow occupies the premises for more than the forty days, and subsequently elects not to take under her husband’s will, giving her the property for life at her election, her possession DOWER. 115 after such election will not avail her in the Federal courts as against her legal title affecting the right to the appointment of a receiver of the property. Her election was tantamount to a refusal to occupy the premises and she may be required to vacate them. Underground Electric Rys. Co. v. Orosley (1909), 169 Fed. 671. After the expiration of a widow’s quarantine she is not a squatter or intruder and cannot be removed by summary proceed- ings. Lincoln Trust Co. v. Hutchinson (1910), 65 Mise. 590, 120 N. Y. Supp. 811. ARTICLE III. THE REMEDY AND PARTIES TO THE ACTION. (Fiero, Spec. Act., 3rd Ed., pp. 472, 473.) Cope Civ. Pro., § 1598. Who may be joined as defendants. Code Civ. Pro., § 1598. Who may be joined as defendants. 1. In either of the cases specified in the last section, any other person, claiming title to, or the right to the possession of, the real property in which dower is claimed, may be joined as defendant in the action. 2. The people of the state of New York may be made a party defendant in an action for dower where the people of the state of New York have an interest in or a lien upon the lands affected thereby, in the same manner as a private person. In such a case the summons must be served upon the attorney-general, who must appear in behalf of the people. But where the people of the state of New York are made a party defendant, as herein provided, the complaint shall set forth, in addition to the other matters required to be set forth by the code of civil procedure, detailed facts showing the particular nature of the interest in or the lien on the said real property of the people of the state of New York and the reason for making the people a party defendant. Upon failure to state such facts the complaint shall be dismissed as to the people of the state of New York. Amended by L. 1913, ch. 773. There is no authority for making the State a party defendant in an action for dower. Smith v. Doe (1908), 111 N. Y. Supp. 525. Where in a judgment creditor’s action instituted after the death of the judgment debtor a deed of trust of all his property is de- clared void as against his creditors, said judgment is not an adju- dication upon his wife’s right of dower though she joined in the deed. In such case, the wife may maintain an action to admeasure her dower against the receiver appointed in a judgment creditor’s action though the judgment therein was not entered until more 116 DOWER, than a year after the death of her husband. Jenkins v. Mollen- hauer (1918), 105 Mise. 15, 173 N. Y. Supp. 870. ARTICLE V. INTERLOCUTORY JUDGMENT FOR ADMEASUREMENT OF DOWER. (Fiero, Spec. Act., 8rd Ed., p. 482.) A vendee is not justified in rejecting a title as unmarketable because the wife of a prior owner did not join in his deed and afterwards began an action to admeasure dower and prosecuted the same to interlocutory judgment awarding an admeasurement if more than twenty years have elapsed since the judgment with- out anything further being done in the action. The lapse of twenty years raises a presumption that a settlement was made with the widow, or that she died, and the burden of rebutting the same is on the vendee. Port Jefferson Realty Co. v. Woodhull (1908), 128 App. Div. 188, 112 N. Y. Supp. 678. ARTICLE VIL. WHAT DAMAGES MAY BE RECOVERED IN THE ACTION. (Fiero, Spec. Act., 3rd Ed., pp. 491-494.) In an action to admeasure dower, defendants are not sued as heirs but as devisees, are ‘‘ other persons ” within the meaning of section 1600 of the Code of Civil Procedure, and the plaintiff may only recover mesne damages from the time of her demand of dower. Roessle v. Roessle (1914), 163 App. Div. 344, 148 N.Y. Supp. 659. In an action for dower a widow should not be awarded a third of the net rental value as established by expert testimony as damages for withholding dower, where the summons against a nonresident incompetent was issued within two davs of the hus- band’s death, and the plaintitl, by refusing to agree to any lease which would interfere with the enforcement of her rights, and by lis pendens filed made rental for the full value impossible. Under such circumstances, the damages should be reduced to one-third of the net rentals existing at the time of the husband’s death, with interest. Woodbury v. Woodbury (1911), 144 App. Div. 680, 129 N. Y. Supp. 686, affd., 205 N. Y. 551. Where after the husband’s death persons by mistake built a DOWER. 117 house upon vacant lands formerly owned by him, the widow is not entitled to a temporary injunction restraining the removal of the building pending an action to admeasure her dower, having no interest in the increased value so caused. Hmrich v. Emrich (1908), 129 App. Div. 557, 113 N. Y. Supp. 1052. ARTICLE VIII. AGREEMENT TO ACCEPT GROSS SUM, AND PROCEEDINGS THEREON. (Fiero, Spec. Act., 3rd Ed., pp. 494-497.) CopE Civ. Pro., § 1621. Liens to be ascertained. Code Civ. Pro., § 1621. Liens to be ascertained. Before an interlocutory judgment is rendered for the sale of the prop- erty, the court must direct a reference to ascertain whether any person, not a party, has a lien upon the property, or any part thereof. But the court may direct or dispense with such reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register as the case requires, of the county where the propery is situated; and it appears therefrom, and by the affidavits, if any, produced therewith, that there is no such outstanding lien. Except as otherwise expressly pre- scribed in this article, the proceedings upon and subsequent to the refer- ence must be the same, as prescribed in article second of this title, where a reference is made as prescribed in section fifteen hundred and sixty-one of this act. Amended by L. 1914, ch. 348. Both an interlocutory and a final judgment must be entered under sections 1619 and 1624 of the Code of Civil Procedure, whichever method of procedure is followed. Howkins v. How- kins (1913), 3 Bradb. 370. In an action of partition, a widow may elect to take a gross sum in lieu of dower, which should be computed according to the tables of mortality from the date of her husband’s death. Ryder v. Kennedy (1915), 166 App. Div. 146, 151 N. Y. Supp. 1036. The fact that a wife refused a gross sum in leu of her inchoate dower right is no reason why her application, after her dower has become consummate, should be denied. Gucker v. Kopp (1915), 169 App. Div. 922, 152 N. Y. Supp. 370. Where a physical admeasurement is not possible and lands are sold, the gross sum payable to the widow should be computed upon the net proceeds of the sale, after deducting the costs allowed in the action, if it appears that the attorneys consented to an allowance of full statutory costs, so that there is no presumption 118 DOWER. that the court intended to charge the same against any particular interest. Woodbury v. Woodbury (1911), 144 App. Div. 680, 129 N. Y. Supp. 686, affd., 205 N. Y. 551. Where, in an action for the admeasurement of dower, the order of reference to take proof of facts and circumstances does not require the referee in terms to ascertain whether an actual admeasurement of dower can be made without material injury to the interests of the parties, or the value of the plaintiff’s right of dower, and the referee reports without having taken such proof, a new order of reference to take proof of the additional facts may be made without amending the former order or refer- ring the matter to the justice who made it; and the report under the former order as to the facts covered by it may be confirmed. Wilkams v. Brown (1911), 73 Misc. 59, 122 N. Y. Supp. 157. ARTICLE IX. FINAL JUDGMENT AND ITS EFFECT. (Fiero, Spec. Act., 3rd Ed., pp. 497-500.) Judgment in action for admeasurement of dower, lien upon real property of decedent thereafter sold under testamentary power of sale. Conlon v. Kelly (1910), 199 N. Y. 43. A receiver holding lands under a decree in an action for the admeasurement of dower requiring him to pay the widow a certain sum annually, cannot refuse to pay upon the ground that the widow claims a fee to the entire property under a deed sub- sequently discovered. This, because in any event the widow is entitled to the amount of dower, and the judgment therefor is binding until set aside. Conlon v. Kelly (1910), 137 App. Div. 277, 121 N. Y. Supp. 1084. EJECTMENT. (Fiero, Spee. Act., 3rd Ed., pp. 501-631.) Art. I, Nature and purpose of the action. II. When the action can be maintained. III. When the action will not lie. IV. By whom the action can be maintained. V. What is necessary to entitle plaintiff to recover. VI. Who may be defendants and who must be joined as such.. VIII. The complaint. IX. Defenses legal and equitable and how pleaded. X. Practice. XI. What rents and profits are recoverable and receivership. XIII. When action will be severed. XIV. Evidence. XV. Verdict. XVI. New trial and its effect and evidence thereon. XVII. Effect of judgment. XVIII. Costs in ejectment. ARTICLE I. NATURE AND PURPOSE OF THE ACTION. (Fiero, Spec. Act., 3rd Ed., pp. 504-506.) The sections relating to the recovery of real property (§ 1496 et seq.) and those relating to the determination of a claim to real property (§ 1638 ef seg.) provide exclusive remedies for any issues coming within the scope of their provisions, and an action in equity will not lie to accomplish the purposes for which those sections were provided unless special facts are alleged showing that the remedy at law is not adequate and bringing the case under equitable cognizance. Pure Strains Farm Co. v. Smith (1917), 99 Mise. 108, 163 N. Y. Supp. 615. ARTICLE II. WHEN THE ACTION CAN BE MAINTAINED. (Fiero, Spec. Act., 3rd Ed., pp. 506-513.) An action of ejectment lies although there was a former action by the plaintiff’s predecessor against the defendant’s predecessor to recover possession, if no lis pendens was filed in that action 119 120 EJECTMENT. and no decision was rendered. New York Central & H. R. R. R. Co. v. Moore (1910), 137 App. Div. 461, 121 N. Y. Supp. 884, affd., 203 N. Y. 618. The deed of an incompetent person may be avoided in an action of ejectment; it is not necessary to resort to equity, Smith v. Ryan (1908), 191 N. Y. 452, 459. Where defendant, without the consent of the State and against the protest of the owner of lands abutting upon the shore of Lake ‘George, erects a permanent dock in the water fronting such lands, tthe owner of the lands may maintain ejectment to recover posses- sion of the dock. Chism v. Lamb (1909), 63 Misc. 209, 118 N. Y. Supp. 458. An occupant in lawful possession under a lease from a life ten- cant for a term of years becomes a trespasser under section 1664 of the Code of Civil Procedure upon refusal to yield possession of said premises after the death of the life tenant, and the remedy of the owners is by action in ejectment and not by summary pro- ceedings under sections 2231 and 2232 of the Code of Civil Pro- eedure, since the conventional relation of landlord and tenant does not exist and the occupant is not such a trespasser as may be re- moved through such proceedings. Walliams v. Alt (1919), 186 App. Div. 235, 174 N. Y. Supp. 460. ARTICLE III. WHEN THE ACTION WILL NOT LIE. (Fiero, Spec. Act., 8rd Ed., pp. 513-519.) Susp. 1. Mortgagee cannot maintain ejectment. 3. Limitation as to strip of land. 4. When action cannot be maintained. Subd. 1. Mortgagee Cannot Maintain Ejectment. (Fiero, Spec. Act., 8rd Ed., pp. 513-515.) Under section 1498 of the Code a mortgagee must be regarded as a mere lienor, having no legal estate in the land covered by his mortgage, and, hence, cannot obtain possession of the mort- gaged premises, prior to foreclosure, so as to constitute himself a mortgagee in possession, except by the consent of the mortgagor, and he has no more right to enter and take possession of the EJECTMENT. 121 premises, without the consent of the latter, than a stranger would have. Barson v. Mulligan (1908), 191 N. Y. 306. A mortgagee, who is in possession under a lease, has no right to possession as mortgagee, after the expiration of his term as lessee, and it is his duty to surrender possession upon demand, and is subject to removal if he refuses so to do; but he may show what transpired after the expiration of the lease upon the question of his right to retain the occupation of the premises. Barson v. Mulligan (1910), 198 N. Y. 28, revg., 183 App. Div. 44, 117 N. Y. Supp. 723. Subd. 3. Limitation as to Strip of Land. (Fiero, Spec. Act., 8rd Ed., pp. 515-516.) Section 1499 of the Code of Civil Procedure applies only where adjoining owners of two pieces of land have erected buildings thereon whose walls abut one on the other and who have thereby apparently made a practical location of the boundary line. Where plaintiff, the owner of an unimproved lot in the city of New York, suffered without objection the erection upon an adjoining lot of a building which encroached upon his land from one and one-half to two and three-quarters inches at the ground level and gradually increased to from four to nine and one-half inches at the top of the building, and the encroachment is unquestioned for many years, he will be denied an injunction to restrain its continuance. Jacobus v. Willis (1911), 74 Mise. 591, 184 N. Y. Supp. 455. Where the encroachment is less than six inches a court of equity will refuse a mandatory injunction. Carroll v. Bullock (1912), 207 N. Y. 567, dismissing appeal from 147 App. Div. 926, 131 N. Y. Supp. 1107. Subd. 4. When Action Cannot be Maintained. (Fiero, Spec. Act., 8rd Ed., pp. 516-519.) An equitable title will not support an action of ejectment; the plaintiff must have legal title and must prove that he has an estate in fee, or for life, or for a term of years. There can be no judgment for the plaintiff in an action of ejectment where he neither alleges nor proves the facts aforesaid. Melsey v. McTigue (1916), 171 App. Div. 877, 157 N. Y. Supp. 730. 122 EJECTMENT. Where, in an action to recover real property which was appro- priated by the State nearly seventy years ago, the proof is insuffi- cient to sustain title in the plaintiff by adverse possession, he cannot maintain the action against one in peaceable possession of the property with the consent of the State. Gring v. American Pipe and Construction Co. (1911), 74 Misc. 570, 182 N. Y. Supp. 545, affd., 151 App. Div. 910, 135 N. Y. Supp. 1115. As both of the parties to this action have rights in the prop- erty which they may continue to hold and enjoy, neither is in a position to eject the other therefrom. Burns Bros. v. City of New York (1917), 178 App. Div. 615, 617, 165 N. Y. Supp. 615. One who has dedicated to the public a street which leads to public waters owned by the State, or who owns uplands on such waters, cannot maintain ejectment against another who builds a boathouse and dock in the line of the street or in front of such lands but on public lands beyond the low-water mark. This, because the plaintiff has no title to the soil from which he seeks to eject the defendant, and ejectment does not lie to prevent inter- ference with the plaintiffs incorporeal hereditaments as a riparian owner of uplands abutting upon public waters. Chism v. Smith (1910), 138 App. Div. 715, 123 N. Y. Supp. 691. Am action of ejectment does not lie where the realty of the plaintiffs is directly affected by two proceedings in eminent domain under which a municipality has condemned the perpetual under- ground easement and the fee simple absolute free from all liens and incumbrances as said action would constitute a collateral at- tack upon a judgment. Diack v. City of New York (1919), 187 App. Div. 312, 175 N. Y. Supp. 364. ARTICLE IV. BY WHOM THE ACTION CAN BE MAINTAINED. (Fiero, Spec. Act., 8rd Ed., pp. 520-529.) Susp. 1. One or more joint tenants. 2. Grantee of lands held adversely. 3. Persons vested with right to immediate possession. Subd. 1. One or More Joint Tenants. (Fiero, Spec. Act., 8rd Ed., pp. 520-521.) One tenant in common may in his own name alone maintain an action of ejectment against a person who is not also a tenant EJECTMENT, 123 in common. Commonwealth Water Co. v. Brunner (1916), 175 App. Div. 153, 161 N. Y. Supp. 794. Subd. 2. Grantee of Lands Held Adversely. (Fiero, Spec. Act., 38rd Ed., pp. 521-524.) The right of a grantee under section 1501 of the Code to bring an action to recover property in the name of the grantors is absolute and cannot be questioned by the grantors. Sheridan v. Cardwall (1911), 145 App. Div. 609, 130 N. Y. Supp. 638. In order for a plaintiff to bring an action of ejectment in the name of her grantor pursuant to section 1501 of the Code of Civil Procedure, the conveyance under which she claims must be void because the property was held adversely to the grantor. Such deed is void only when the lands are in the possession of a person claiming under a title adverse to that of the grantor at the time of the delivery. It appears that the only title the defendant’s predecessor could convey was a right of possession under a tax lease; a deed to the plaintiff conveyed the title her grantors pos sessed subject to the defendant’s right of possession under the tax leases. It follows that the conveyance under which the plaintiff claims is not void because of the fact that the property was held adversely to her grantor, and she cannot maintain ejectment in their names. Sheridan v. Cardwell (1910), 141 App. Div. 854, 126 N. Y. Supp. 781. Where in an action to recover possession of real property defendant alleges that he was in actual possession of the land, claiming under a title adverse to that of plaintifi’s grantors when they made the conveyance to her, and also claims title under a deed received after the action was begun from plaintiff’s grantors to himself, he is estopped from asserting that plaintiff cannot maintain the action in the name of her grantors. Sheridan v. Cardwell (1911), 145 App. Div. 609, 180 N. Y. Supp. 638. Subd. 3. Persons Vested with Right to Immediate Possession. (Fiero, Spec. Act., 3rd Ed., pp. 524-529.) A plaintiff may maintain an action of ejectment where for more than sixty years prior to the trial his predecessor in title was in possession under a deed covering the lands in dispute, and 124 EJECTMENT. built and occupied a house thereon and cultivated the lands as a farm. A deed from a person in possession presumptively estab- lishes title and possession once established is presumed to continue until the contrary be shown. Vew York Central & H. R. R. R. Co. v. Moore (1910), 187 App. Div. 461, 121 N. Y. Supp. 884, affd., 203 N. Y. 615. ARTICLE V. WHAT IS NECESSARY TO ENTITLE PLAINTIFF TO RECOVER. (Fiero, Spec. Act., 8rd Ed., pp. 530-534.) Supp. 1. Plaintiff must recover on the strength of his own title. 2. When possession gives presumption of title. Subd. 1. Plaintiff Must Recover on the Strength of His Own Title. (Fiero, Spec. Act., 3rd Ed., pp. 530-532.) The plaintiff in ejectment must recover upon the strength of his own title, not on the weakness or lack of title in the defendant. Aubuchon v. New York, New Haven & Hartford R. R. Co. (1910), 187 App. Div. 834, 122 N. Y. Supp. 581; Sheridan v. Cardwell (1910), 141 App. Div. 854, 126 N. Y. Supp. 781; Fletcher v. City of New York (1914), 87 Mise. 109, 149 N. Y. Supp. 289. While as a general rule a plaintiff in ejectment must recover upon the strength of his own title, and not on the weakness of that of his adversary, the rule holds where title is asserted against title and not to a case where the defendant claims no title, but merely objects that the plaintiff has not proved a perfect title against those who might claim adversely. People v. Tuthill (1917), 176 App. Div. 621, 163 N. Y. Supp. 843. The burden is upon a plaintiff in ejectment to prove his title. Tyndail v. Fleming (1908), 123 App. Div. 837, 108 N. Y. Supp. 239, In ejectment proof of the estate of the plaintiff is a condition precedent to his recovery in the action. Meehan v. Dobson (1911), 131 N. Y. Supp. 37. “An action in ejectment must depend upon the right to posses- sion when the action is commenced.” Lewis v. Ryan (1908), 123 App. Div. 497, 500, 108 N. Y. Supp. 274. EJECTMENT. 125 Where the plaintiff, in an action of ejectment, failed to prove that the defendant was in possession of any part of the premises in question at the time of the commencement of the action, the action cannot be maintained. Avraus v. Birnbawm (1910), 200 N. Y. 180. In an action of ejectment it is not sufficient to prove a paper title to the lands unless it be traced back either to the sovereign or to some one who was the common source of the titles claimed by both parties. In other cases in addition to the paper title possession in some oue through whom the plaintiff claims must be proved. Aubuchon v. New York, New Haven & Hartford R. R. Co. (1910), 1387 App. Div. 834, 122 N. Y. Supp. 581. In an action of ejectment to recover a strip of beach land above high water mark on Long Island Sound, the defendant relied upon his own title and upon failure of the plaintiff to prove title. The plaintiff, by presenting all records discoverable by diligent search relating to the land in question, fulfilled its duty. Town of Oyster Bay v. Stehli (1915), 169 App. Div. 257, 154 N. Y. Supp. 849. A plaintiff in ejectment having proved'a deed of the premises in question to her predecessor in title, and his possession there- under, makes a prima facie case and is entitled to recover unless the defendant proves that the plaintiff’s predecessor did not have legal title, or that he himself acquired title by adverse possession. Kahler v. Thron (1913), 155 App. Div. 744, 140 N. Y. Supp. 1002. Where the parties to an action of ejectment do not derive their title from a common source, and the plaintiff’s title is not traced back to the sovereign, he cannot recover without proof of actual possession in himself or predecessors in title at some time prior to the possession of the defendant. The plaintiff in such action cannot recover where the evidence shows a continuous, actual possession in the defendant and his predecessors which has never been questioned or attacked for over thirty years. Baker y. Duff (1909), 136 App, Div, 13, 120 N. Y. Supp. 184, affd.. 202 N. Y. 570. A paper title is insufficient unless traced back either to the sovereign or to some one admitted or proved to have been a common source of the titles claimed by both parties. In other cases, in addition to the paper title, possession must be proved in some one 126 EJECTMENT. through whom the plaintiff claimed. Hence, where a plaintiff fails to prove seizin or possession within twenty years in herself or her predecessors in title, she is not entitled to recover. Sheri- dan v. Cardwell (1910), 141 App. Div. 854, 126 N. Y. Supp. 781. The fact that the defendant in an action of ejectment brought by the State to recover possession of lands sold, and bought in for unpaid taxes, gave no proof of title, nor evidence that he entered under claim of title, is immaterial, where the tax sales were void and judgment has been rendered, for that reason, in favor of defendant. It is a well-settled general rule of law that. the plaintiff in ejectment must succeed on the strength of his own title, not on the weakness of the defendant’s title. People v. Inman (1910), 197 N. Y. 200. Where the complaint in an action of ejectment alleges an ouster of plaintiffs by defendants from a strip of land, which the answer admits, setting up the defendants’ right of possession, and it appears on the trial that plaintiff built a new fence along their line so as to straighten certain crooks made by the sliding of the old fence down hill, and that defendants tore down a part of the new fence, claiming it encroached on their land four or five feet, it is error to dismiss the complaint on the ground that the old fence having been acquiesced in for twenty years was the proper boundary, and that the tearing down of the fence was merely a trespass, and that no ouster authorizing an action in ejectment had been shown. Nordstrom v. Morehouse (1910), 139 App. Div. 368, 124 N. Y. Supp. 42. Although the plaintiff in ejectment after alleging that the defendant tore down fences and unlawfully took possession of a portion of the land further alleges that she herself is in possession, the court should dismiss the complaint upon the theory that the plaintiff has failed to prove her own title or an ouster by the defendant, if she gives evidence that she and her predecessors had fenced in the disputed strip of land for over twenty vears so as to constitute adverse possession, that the defendant tore down the fences and prevented the plaintiff from rebuilding the same and when the answer itself alleges title in the defendant. Araus v. Birnbaum (1909), 182 App. Div. 567, 116 N. Y. Supp. 916, revd., 200 N. Y. 120. In an action of ejectment the possession of the defendant may EJECTMENT. 127 be both a question of fact and of law. Good v. Brown (1918), 181 App. Div. 808, 168 N. Y. Supp. 1028, In an action of ejectment a defendant owning the fee, who was brought into the action by the service of an amended summons and complaint after other defendants had been served, may plead the Statute of Limitations by alleging the lapse of twenty years “before the commencement of this action,” although she does not assert the statute ‘‘ as to this defendant.” Good v. Brown (1918), 181 App. Div. 808, 168 N. Y. Supp. 1028. Subd. 2. When Possession Gives Presumption of Title. (Fiero, Spec. Act., 3rd Ed., pp. 532-534.) The words “ legal title,” as used in section 368 of the Code of Civil Procedure creating a presumption of possession where a party in ejectment establishes a legal title, mean something more than a paper title. Aubuchon v. New York, New Haven & Hart- ford R. R. Co. (1910), 187 App. Div. 834, 122 N. Y. Supp. 581. Where legal title is established by neither party in an action of ejectment, the one showing the prior possession in himself or in those through whom he claims, although for a period less than that which is requisite to confer a title by adverse possession, will be deemed to have the better right. Therefore, though the defendant proves merely naked possession in himself without claim of title, it is sufficient to enable him to succeed in his defense if the plaintiff fails to prove title on its part. People v. Inman (1910), 197 N. Y. 200. ARTICLE VI. WHO MAY BE DEFENDANTS AND WHO MUST BE JOINED AS SUCH. (Fiero, Spec. Act., 8rd Ed., pp. 534-540.) An action of ejectment to recover possession of lands sold to the State under a void tax sale is properly brought against the Comptroller. Saranac Land & Timber Co. v. Roberts (1908), 125 App. Div. 333, 109 N. Y. Supp. 547, affd., 195 N. Y. 303. In an action against a corporation and receivers thereof, appointed in the Federal court, for the immediate possession of property occupied by such receivers, the receivers are necessary 128 EJECTMENT, parties defendant. Barwin Realty Co. v. Batterman Co. (1915), 169 App. Div. 415, 155 N. Y. Supp. 178. In an action to recover the possession of real property, the only necessary party defendant is the occupant of the property sought to be recovered. In such an action, brought by one owning an undivided share in the property, the owners of the other shares and one having a right of dower in the premises are not neces- sary parties. Beyers v. Grande (1908), 58 Mise. 398, 109 N. Y. Supp. 447. ARTICLE VIII. THE COMPLAINT. (Fiero, Spec. Act., 38rd Iid., pp. 541-552.) Forms for Complaint. See Fiero, Spec. Act., 3rd Ed., pp. 548-552. A complaint in an action for ejectment brought in the name of the grantor for the benefit of the grantee, held adversely to the grantor, is not defective because it fails to allege a withholding of the premises from the plaintiff grantor, but alleges simply a with- holding from the plaintifi’s grantee subsequent to the delivery of the deed. Carey v. Lang (1912), 153 App. Div. 872, 138 N. Y. Supp. 555. The fact that the complaint describes two parcels of land and that the allegation that “‘ Defendant is in possession thereof and withholds the same,” immediately follows the description of one of the parcels, does not restrict such allegation to that parcel. Chism v. Smith (1914), 210 N. Y. 198, revg., 150 App. Div. 893, 1383 N. Y. Supp. 1115. Where a complaint in ejectment alleged that plaintiff was seized of the land described therein and was entitled to the immediate possession thereof, which was withheld by defendant, a motion to dismiss at the opening of the trial was improperly granted. Chism v. Smith (1914), 210 N. Y. 198, reve, 150 App. Div. §92, 183 N. Y. Supp. 1115. Although the plaintiff in ejectment after alleging that the defendant tore down fences and unlawfully took possession of a portion of the land further alleges that she herself is in possession, the court should dismiss the complaint upon the theory that the plaintiff had failed to prove her own title or an ouster by the EJECTMENT, 129 defendant, if she gives evidence that she and her predecessors had fenced in the disputed strip of land for over twenty years so as to constitute adverse possession, that the defendant tore down the fences and prevented the plaintiff from rebuilding the same and when the answer itself alleges title in the defendant. Kraus v. Birnbaum (1909), 182 App. Div. 567, 116 N. Y. Supp. 916, revd., 200 N. Y. 130. Complaint in an action for ejectment brought against an heir who refused to recognize the plaintiff’s title acquired by a con- veyance from an executrix under a power of sale examined, and held, to state a cause of action. Thetling v. Marshall (1910), 140 App. Div. 124, 124 N. Y. Supp. 1068. A complaint in an action in partition which seeks incidentally to eject the defendant from the lands as not being the owner thereof sufficiently states a right to the latter relief where it in substance allages that the plaintiff and others are seized in fee simple and entitled as tenants in common to the immediate possession of the lands deseribed and that one of the defendants (whom it is sought to eject) is in occupation of the premises and wrongfully and unlawfully withholds possession thereof from the plaintiff and the parties entitled thereto as owners in fee. But the complaint is subject to demurrer where, in addition to the allegations aforesaid, the plaintiff attempts to plead title by alleging that the title of the plaintiff and others was acquired under the statute of descent as of the surviving next of kin of a certain person who died seized and possessed of the premises. Hunter v. Willard (1916), 176 App. Div. 204, 162 N. Y. Supp. 864. As right to possession is essential to the maintenance of an action for ejectment, a reply which admits the title set forth in the defendant’s answer, but alleges that the defendant’s predecessor was incompetent when he alienated by deed and will alleged to have been procured by fraud and undue influence, is demurrable, in the absence of allegations that the defendant’s grantor had been judicially declared to be a lunatic, or that the conveyance had been declared void by a court of equity. Although a different rule prevails where it is alleged that the title was procured by active fraud, mere allegations that the defendant’s predecessors, well knowing the insanity and incom- 9 130 EJECTMENT. petency of their grantor, fraudulently and illegally induced and unduly influenced him to convey, ete., are insufficient as allega- tions of fraudulent conspiracy, being mere conclusions not admitted by the demurrer. Lewis v. Ryan (1908), 123 App. Div. 497, 108 N. Y. Supp. 274. ARTICLE IX DEFENSES LEGAL AND EQUITABLE AND HOW PLEADED. (Fiero, Spec. Act., 3rd Ed., pp. 552-581.) Supp. 1. Defenses generally. 2. Adverse possession as a defense. Subd. 1. Defenses Generally. (Fiero, Spec. Act., 8rd Ed., pp. 552-556.) ‘Where the plaintiff’s predecessor in title died more than forty- nine years after an alleged conveyance to him, an action of eject- ment is barred by the Statute of Limitations. The death of the plaintiff’s predecessor created no new right of possession where the statute had fully run against him during his lifetime. Where the Statute of Limitations is asserted as a defense to an action of eject- ment, the plaintiff must give some evidence showing that the cause is not barred. Baker v. Duff (1909), 186 App. Div. 13, 120 N. Y. Supp. 184, affd., 202 N. Y. 570. In an action of ejectment, the defense that the conveyance to plaintiff was champertous under section 225 of the Real Prop- erty Law, providing that a grant of land is void, at the time of the delivery thereof, the property is in the actual possession of one claiming under a title adverse to that of the grantor, is unavailable to one who makes no claim of title but is simply in possession, without claiming right thereto. Belcher v. Belcher (1909), 134 App. Div. 726, 119 N. Y. Supp. 144. Where the deed of the defendant in an action of ejectment does not include the lands which are the subject-matter of the action, he may not, although in possession, assert that the deed to the plaintiff was void for champerty by reason of such possession. This, because under the statute to make a deed void for champerty where the lands are in the actual possession of a person claiming under title adverse to that of the grantor, he must claim under some EJECTMENT. 131 specific title in order that his possession may be adverse. Wilson v. Boyce (1911), 143 App. Div. 782, 128 N. Y. Supp. 438. Chapter 283 of the Laws of 1885, which provides that the forest commission shall have the care, custody, control and superin- tendence of the forest preserve, did not authorize that commission to represent the State in actions brought to deprive it of the possession of and the title to lands, and its powers were not so wide as to imply the right to defend an action of ejectment. Saranac Land & Timber Cv. v. Roberts (1909), 195 N. Y. 303, Where, in an action by the State for ejectment, it appears that seven years prior to the entry of the defendant into possession, the State recovered a judgment in ejectment against the defendant’s grantor, and that the defendant, being confronted with the prob- ability of a similar action against himself, executed, acknowledged and delivered an instrument admitting and conceding the property to be owned by the People of the State, he is estopped from as- serting any title to the premises as against the plaintiff. People v. Beqguelin (1918), 184 App. Div. 759, 172 N. Y. Supp. 530. Action in ejectment to recover possession of lands situate on a beach of Lake Ontario. In a prior action in ejectment against the same defendant brought by another plaintiff and involving the same land and titles, it was held that the defendant’s exceptions upon a case ordered to be heard at the Appellate Division in the first instance should be overruled and judgment ordered for the plaintiff. In the present case there is no new testimony bearing upon the construction of the deeds under which the parties claim which would require or support a different interpretation of said deeds. Accordingly held, that the defendant’s exceptions in the present case should be overruled and judgment directed for the plaintiff. Brewer v. Moore (1918), 182 App. Div. 343, 170 N. Y. Supp. 376. Subd. 2. Adverse Possession as a Defense. (Fiero, Spec. Act., 3rd Ed., pp. 556-572.) It is not sufficient for defendant to claim title, but he must claim some specific title adverse to that of the grantor. Belcher v. Belcher (1909), 184 App. Div. 726, 119 N. Y. Supp. 144. The actual possession and improvement of premises, as owners 182 EJECTMENT. are accustomed to possess and improve their estates, without any payment of rent, or recognition of title in another, or disavowal of title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of the occupant’s entry and hold- ing as absolute owner, and, unless rebutted by other evidence, will establish the fact of a claim of title. Possession, accompanied by the usual acts of ownership, is presumed to be adverse until shown to be subservient to the title of another. Monnot v. Murphy (1913), 207 N. Y. 240. Where the defendant in an action to recover the fee and the possession of land pleaded adverse possession and that question was submitted to the jury, it was error for the trial court to charge, as a matter of law, and unqualifiedly, that cultivation means to disturb the surface of land, and to sow and cultivate and reap, and in substance that cutting grass from a lot is not such an improvement as may constitute adverse possession. The language of the statute, which defines and declares that which constitutes adverse possession (Code Civ. Pro., § 370), should be construed with reference to the nature, character, condition and location of the property under consideration. Ramapo Mfg. Co. v. Mapes (1915), 216 N. Y. 262. A title by adverse possession only arises from long-continued use or possession when a man can show no other title or right of possession, the law implying a grant from the fact of a continued use or possession without objection. If other title or right of possession can be shown no right in the premises adverse to that right or title will be implied from possession. The possession or use will be held to be under the known title. Thus, the mere statement of an unfounded claim by one in lawful possession cannot change the character of his possession nor impose any obligation on the other party to alter his position in relation thereto. Burns Bros. v. City of New York (1917), 178 App. Diy. 615, 165 N. Y. Supp. 615. Where an abandoned railroad right of wavy which was sold on foreclosure to the plaintiff's predecessor in title was unfenced, but was a portion of a larger tract of agricultural lands which were fenced, acts of tillage, use and enjoyment by the owner of the large tract may be shown to establish adverse possession of the abandoned right of way, and it is not essential that a specific use of the site of the former right of way itself be shown. Arnold v. EJECTMENT. 133 New York, Westchester & Boston R. Co, (1916), 173 App. Div. 764, 159 N. Y. Supp. 258. The fact that one has been in actual, open and notorious posses- sion of lands for more than twenty years is not alone sufficient to establish a title by adverse possession. It must be shown in addi- tion that the possession was coupled with a claim of title adverse to the true owner. Meighan v. Rohe (1915), 166 App. Div. 175, 151 N. Y. Supp. 785, mod. 216 N. Y. 53 (mem.) It is insufficient to establish title by adverse possession to rough woodland to show that, although for part of the time since 1871 it had been surrounded by a fence, this had for a long time prior to 1906 been broken down on one side so that the tract was bounded only by a ditch on the west, in the absence of proof that the land had been cultivated in any way, or improved, or used for any purpose whatever. Reynolds v. White (1911), 143 App. Div. 595, 128 N. Y. Supp. 529. Where a deed expressly excludes a particular parcel of land there is no privity of contract between the parties in regard to it, and the grantor’s possession thereof cannot be tacked on to the grantee’s possession for the purpose of establishing title by adverse possession in the grantee. Staples v. Schnackenberg (1911), 148 App. Div. 161, 132 N. Y. Supp. 1092. One who without a paper title to land seeks to establish title by adverse possession against the holder of the legal title should be held to strict proof. Staples v. Schnackenberg (1911), 148 App. Div. 161, 182 N. Y. Supp. 1092. The time of possession of lands necessary to support the pre- sumption of a lost grant cannot, under the law of this State, be less than twenty years. In order that there may be a presump- tion of a lost grant arising through an open possession.of lands for over twenty years, it is not necessary to prove circumstances indicating the probability that a grant was actually made. The presumption exists where the circumstances indicate only a pos- sibility of a grant. Kellum v. Corr (1912), 149 App. Div. 200, 133 N. Y. Supp. 784, affd., 209 N. Y. 486. In Kahler v. Thron (1913), 155 App. Div. 744, 140 N. Y. Supp. 1002, it was held that the plaintiff did not obtain possession of the disputed parcel by fencing it where the defendant removed the fence the day after it was built. .Mere nonresidence of the defendant in an action for ejectment 184 EJECTMENT. does not operate to prevent the acquisition of title by adverse possession, where under a claim of title she occupied the premises personally during a portion of the year, and at other times through tenants or servants. Wrench v. Wray (1915), 166 App. Div. 471, 151 N. Y. Supp. 1015. Where a deed includes lands, an original entry thereunder is adverse possession, however groundless the title. Green v. Horn (1908), 128 App. Div. 686, 112 N. Y. Supp. 993. “Tt is a well-settled rule of law that no title by adverse posses- sion can be obtained to lands in a highway.” Matter of City of New York (1916), 217 N. Y. 1. To avoid a deed under the Champerty Act (L. 1896, ch. 547, § 225), the adverse possession must be under a claim of some specific title, not necessarily a good title, but still a paper title as distinct from a general assertion of ownership, a title under some written instrument purporting to convey the lands to the claimant, or else some judgment, decree or executed process of a court. Green v. Horn (1913), 207 N. Y. 489. An invalid claim is as effectual, as a constituent of the notice to the rightful owner that the occupation under it is in defiance of his title, as a valid claim. Monnot v. Murphy (1913), 207 N. Y. 240. No possession not under a claim of title in fee and exclusive of any other right in the land is adverse to the legal title so as to bar the owner or ripen into title by lapse of time. Section 369 of the Code of Civil Procedure has no application to possession under a claim to some use, term, or interest less than a fee. Scheer v. Long Island R. R. Co. (1908), 127 App. Div. 267, 111 N. Y. Supp. 569. Where the title and right to possession of an owner had been established in an action of ejectment, a re-entry of the claimant in that suit must be deemed to be in recognition of the owner’s rights as established. This, because it will not be presumed that he undertook to reassert title in the face of a judgment determining that he had none. Monnot v. Rudd (1910), 139 App. Div. 651, 124 N. Y. Supp. 210. Plaintiff cannot assert title by adverse possession under deeds not purporting to convey the strip of land in dispute, and the actual possession arising by the occupation of a dwelling house on the front part of her lots is not constructive possession of a portion EJECTMENT. 185 in the rear covered by the defendant’s deed. Brainin v. New York, New Haven & Hartford R. R. Co. (1910), 136 App. Div. 392, 120 N. Y. Supp. 1093. Where in ejectment against husband and wife it appears that she had entered into possession of the premises in question, a strip of land thirty-three feet wide adjoining a public park and which afforded the only way for her and her predecessors in title to reach her lands in the rear from a public street, and that there had been a continuous occupation and possession of the premises by her and her predecessors in title for upwards of forty years under the same claim, she must be deemed to have held adversely and that she had a good title thereto by adverse possession and is entitled to judgment for a dismissal of the complaint and adjudg- ing her to be the owner of the premises. Manchester v. Post (1916), 97 Mise. 451, 161 N. Y. Supp. 371. Evidence tending to show acts establishing adverse possession, instructions to jury. See Green v. Horn (1915), 165 App. Div. 743, 151 N. Y. Supp. 215. To perfect title by adverse possession it is not necessary that the true owner had actual notice, or that the claimant asserted his ownership in public in so many words, for a claim of title may be made by acts as well as by assertions. Green v. Horn (1908), 128 App. Div. 686, 112 N. Y. Supp. 993. A railroad in possession of lands for over twenty years under condemnation proceedings brought to acquire a right of way but which were void for failure to join the true owner, does not acquire title by adverse possession under section 369 of the Code of Civil Procedure, but merely an easement by adverse user. Scheer v. Long Island R. R. Co. (1908), 127 App. Div. 267, 111 N. Y. Supp. 569. The fact that one had obtained a judgment that he was the owner of certain lands and that another had no title thereto, does not prevent the Statute of Limitations from running on behalf of the latter as against the title under the judgment. Monnot v. Murphy (1913), 207 N. Y. 240. In the exercise of the power of eminent domain by or in behalf of a railroad company the permanent public use of the land is contemplated, and the use of the railroad company while the easement exists is exclusive of the owner of the fee. A claim to the rightful possession of land under such an easement is hostile 136 EJECTMENT. to the fee owners and is the assertion of a title which adverse possession will render unassailable when the requisite period of time has elapsed. Long Island R. R. Co. v. Mulry (1914), 212 N. Y. 108. The possession of a tenant for life is rightful and not adverse to a remainderman or reversioner. No right of action for posses- sion of real property accrues to a remainderman or reversioner during the life of one holding such property as a tenant for life. Partenfelder v. People (1914), 211 N. Y. 355. During the life of a tenant for life neither his possession nor that of his grantee can be adverse to that of the remainderman. Jefferson v. Bangs (1909), 197 N. Y. 35. The period of twenty years necessary to the acquisition of a title by adverse possession does not begin to run against a remain- derman until the termination of precedent life estates, for until he had the right to possession there could be no possession adverse to him. Cramp v. Dady (1914), 162 App. Div, 321, 147 N. Y. Supp. 619. A title to a water front by adverse possession is not established by occasional occupation of the shore for fishing and an occasional sale of sand therefrom. New York Central & H. R. R. R. Co. v. Moore (1910), 187 App. Div. 461, 121 N. Y. Supp. 884, affd., 203 N. Y. 615. Adverse possession of salt meadows which are incapable of cultivation is established where the plaintiff and his predecessors for over twenty years made a regular, open and notorious use of the lands by cutting the natural grass therefrom, that being the only use for purposes of husbandry of which the land was sus- ceptible. Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich (1909), 182 App. Div. 118, 116 N. Y. Supp. 522, affd., 200 N. Y. 533. Ditches around three sides of a salt meadow, which is bounded on the fourth side by a creek, constitute a “ substantial inclosure ” within the meaning of section 370 of the Code of Civil Procedure so as to give title by adverse possession. Annual mowing of the salt grass on such lands is also sufficient compliance with the requirement of said section that the lands shall be “ usually cultivated.” Koch v. Ellwood (1910), 188 App. Div. 584, 128 N. Y. Supp. 502. Evidence that the defendants, with others, occupied the land EJECTMENT. 137 for fishing purposes, is insufficient to prove open, notorious and continued acts of ownership, establishing adverse possession, especially since an ancestor of the defendants who was an officer of the town which formerly owned the lands participated in cor- porate acts inconsistent with the present claim of adverse title. Weeks v. Domany (1914), 161 App. Div. 414, 146 N. Y. Supp. 624. While a person building a wharf or dock on a bulk-head line may be guilty of trespass, he is not guilty of committing or main- taining a nuisance, and his action, if long continued, may ripen into title by adverse possession. Matter of City of New York (1916), 217 N.Y. 1. ARTICLE X. PRACTICE. (Fiero, Spec. Act., 3rd Ed., pp. 581-583.) Actions of ejectment brought under section 1496 of the Code have always been triable by a jury. Pure Strains Farm Co, v. Smith (1917), 99 Mise. 108, 163 N. Y. Supp. 615. It is the province of a jury to determine upon all the evidence the location of an indefinite boundary line disputed in an action of ejectment. Gilmartin v. Buchanan (1909), 134 App. Div. 587, 119 N. Y. Supp. 489. A cause of action for mesne profits may be joined with a cause of action in ejectment, under section 1531 of the Code of Civil Procedure, in a court having jurisdiction of the latter, or a separate action for mesne profits may be brought. Pzekelko v. Lake View Brewing Co. (1909), 65 Mise. 365, 119 N. Y. Supp. 847. ARTICLE XI. WHAT RENTS AND PROFITS ARE RECOVERABLE, AND RECEIVERSHIP. (Fiero, Spec. Act., 3rd Ed., pp. 583-592.) Supp. 1. What damages can be recovered. Subd. 1. What Damages Can Be Recovered. (Fiero, Spec. Act., 8rd Ed., pp. 583-591.) The provisions of sections 1496, 1497 and 1531 of the Code of Civil Procedure prescribe the rule of damages which may ordi- narily be recovered in actions of ejectment, but there is nothing in them to indicate that they were designed to exclude, in a proper 138 EJECTMENT. case, the right to double damages provided for in section 200 of the Real Property Law (L. 1896, ch. 547). The latter statute, however, can only be invoked upon the termination of a tenancy for life or years, when a proper notice has been served, and the tenant or any person in collusion with him wilfully holds over after the expiration of thirty days from the service of a notice to quit, and it is essential to a good cause of action thereunder that the complaint should allege the holding over to be willful, and this allegation must be supported by proof that the holding over was deliberate, intentional, obstinate, unreasonable or per- verse. Barson v. Mulligan (1908), 191 N. Y. 306. Section 1531 of the Code of Civil Procedure limiting a recovery of rents and profits or the value of use and occupation to a term not exceeding six years applies only to actions of ejectment. Adams v. Bristol (1908), 126 App. Div. 660, 111 N. Y. Supp. 231, affd., 196 N. Y. 510. Effect of a prior judgment in ejectment on a subsequent claim for improvements, see Ketcham v. Deutsch (1912), 152 App. Div. 904, 127 N. Y. Supp. 402, revd., 211 N. Y. 85. ARTICLE XIII. WHEN ACTION WILL BE SEVERED. (Fiero, Spec. Act., 3rd Ed., pp. 593-595.) Where a landlord and his tenants are made defendants in an action of ejectment, and the former has answered asserting his right to possession, the action cannot be severed and judgment for possession rendered against the tenants upon the ground that they have not answered. The possession of the tenants is that of their landlord, and such order would deprive the latter of his rights without a hearing. Lewis v. Townsend (1909), 132 App. Div. 347, 117 N. Y. Supp. 48. ARTICLE XIV. EVIDENCE. (Fiero, Spee. Act., 8rd Ed., pp. 595-606.) Supp. 2, What evidence is necessary and proper in ejectment. Subd. 2. What Evidence is Necessary and Proper in Ejectment. (Fiero, Spec. Act., 3rd Ed., pp. 598-606.) The plaintiff in an action of ejectment may prove any admis- sions made by the defendant showing or tending to show that he EJECTMENT. 139 did not claim title to the premises. Conselyea v. Van Dorn (1908), 129 App. Div. 520, 114 N. Y. Supp. 61. Where the ownership, rather than the possession, of lands is in question, declarations of a deceased owner to the effect that they were not covered by his deeds are inadmissible. Such declarations are admissible only to show the nature and extent of the posses- ston and the character and equity of the claim of title under which the property was held or other material facts resting in pais. (il- martin v. Buchanan (1909), 134 App. Div. 587, 119 N. Y. Supp. 489. Where, in an action of ejectment, in which the plaintiffs claimed title as heirs at law of a decedent, who was concededly, at one time, seized and possessed of the premises, and the defendants claimed title through a deed executed by decedent, which was put in evidence at the trial, and in rebuttal thereof the plaintiffs sought to prove that, at the time of the execution of such instru- ment, the decedent was of unsound mind and incompetent, it was reversible error for the trial court to exclude the latter evidence on the ground that, as the said decedent had not been judicially declared incompetent, the deed could be avoided only in equity, and to direct a verdict for the defendants. Smith v. Ryan (1908), 191 N. Y. 452. Where in an action of ejectment the plaintiff offers in evidence the answer of the defendant’s grantor in a prior action, and it is received in evidence generally, it inures as well to the benefit of the defendant as to that of the plaintiff. Baker v. Duff (1909), 186 App. Div. 13, 120 N. Y. Supp. 184, affd., 202 N. Y. 570, Action of ejectment. Evidence examined, and held, insufiicient to require a submission to the jury of the question as to whether the plaintiffs had agreed that the defendant, a mortgagee, might remain in possession of the premises until the mortgage was paid. Barson v. Mulligan (1909), 138 App. Div. 44, 117 N. Y. Supp. 723, revd., 198 N. Y. 23. A plaintiff in an action of ejectment may put in evidence a deed to his predecessor in title without proof of contemporaneous possession by the grantor, but it is not sufficient evidence to estab- lish the grantor’s title without showing subsequent possession by him or by the persons through whom he took title. Sheridan v. Cardwell (1910), 141 App. Div. 854, 126 N. Y. Supp. 781. Evidence of a conversation wherein the plaintifi’s predecessor 140 EJECTMENT. stated to the defendant’s predecessor that he claimed the disputed parcel, but that the defendant’s predecessor might use it until wanted, is admissible to show that the defendant’s predecessor’s possession was subordinate to that of the plaintifi’s predecessor, and not adverse thereto. Aahler v. Thorn (1913), 155 App. Div 744,140 N. Y. Supp. 1002. The exclusion, during the trial of such an action brought by the owners of land, as tenants in common, to recover the possession thereof upon the expiration of a tenancy by the curtesy therein, of answers to questions put to the lessee as a witness, in which she was asked to state a conversation which he had testified had taken place between one of the reversioners and herself, and to state whether the said reversioner had said anything to her with reference to her remaining in possession of the premises under her mortgage, cannot be sustained on the ground that the inquiry was not within the issues raised by the pleadings, where the com- plaint alleges that the defendants are wrongfully in possession without leave of the plaintiffs and without legal right, and the answer denies the allegation; although the reversioner in question, being one of several tenants in common, could not affect the interest of his co-tenants, still he had the right to bind himself and his own interest, and as the questions were broad enough to cover a transaction in which he might have bound or affected his own right to possession, the evidence sought to be elicited was competent and material. Barson v. Mulligan (1908), 191 N. Y. 306, 8. C. (1910), 198 N. Y. 23. In an action for ejectment, the defendant sought to justify permanent occupations by proof of usage in connection with a reservation. Proof as to usage examined and held to be insuffi- cient. Spring v. Conklin (1916), 173 App. Div. 719, 159 N. Y. Supp. 1027. ARTICLE XV. VERDICT. (Fiero, Spec. Act., 8rd Ed., pp. 606-608.) A judgment in ejectment is defective where it does not describe the specific lands in controversy and contains no provision that the plaintiff recover possession. Shanley v. Murty (1909), 184 App. Div. 845, 119 N. Y. Supp. 175. EJECTMENT, 141 Where the complaint in an action of ejectment involving the location of a disputed boundary line, describes the disputed parcel of land by metes and bounds, and without objection of parties two questions are submitted to the jury, first, whether a former deed of the plaintiff to the defendant’s predecessor in title included the parcel, and, second, whether if it was not included in the deed the defendant had acquired title by adverse possession, and no request was made for the submission of these specific questions, the jury may render a general verdict for the plaintiff and a judgment may be entered thereon. Ramapo Mfg. Co. v. Mapes (1912), 155 App. Div. 448, 140 N. Y. Supp. 490. Where the jury in an action of ejectment merely locates a dis- puted boundary line and finds that the plaintiff has not repossessed herself of the lands, but there is no general verdict or finding as to the plaintiff’s estate in the property as required by section 1519 of the Code of Civil Procedure, and the verdict does not describe the property to be recovered, or fix the damages, or award possession to the plaintiff, a judgment entered by direction of the court is fatally defective and will be set aside on motion. Shanley v. Murty (1909), 184 App. Div. 845, 119 N. Y. Supp. 175. A verdict which fails to define the estate of the plaintiff is fatally defective. The term “estate” has been defined as the quantity of interest which a person has in the land. Meehan v. Dobson (1911), 181 N. Y. Supp. 37. ARTICLE XVI. NEW TRIAL AND ITS EFFECT, AND EVIDENCE THEREON. (Fiero, Spec. Act., 3rd Ed., pp. 609-616.) Cope Civ. Pro., § 1526. Effect of judgment by default. §§ 1525, 1527, 1528, and 1530. Repealed L. 1911, ch. 509. Code Civ. Pro., § 1526. Effect of judgment by default, etc. A final judgment for the plaintiff, rendered in an action specified in this article, otherwise than upon the trial of an issue of fact, is conclusively upon the defendant, and every person claiming from, through, or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk’s officc, as prescribed in article ninth of this title. Amended L. 1911, ch. 509. By the repeal in 1911 of section 1525 of the Code of Civil Procedure which provided that, at any time within three years 142 EJECTMENT, after the filing of the judgment roll in an action of ejectment, the court on proper application must make an order vacating the judgment and granting a new trial, a judgment in ejectment rendered prior to such repeal is final and conclusive, and a motion to vacate it and for a new trial, made after such repeal took effect, must be denied. Lewis v. Townsend (1913), 79 Misc. 61, 140 N. Y. Supp. 500, affd., 155 App. Div. 931, 140 N. Y. Supp. 1127. ARTICLE XVII. EFFECT OF JUDGMENT. (Fiero, Spec. Act., 3rd Ed., pp. 616-620.) Cope Civ. Pro., § 1524. Effect of judgment rendered after trial of issue of fact. § 1529. Effect on possession of vacating judgment. Code Civ. Pro., § 1524. Effect of judgment rendered after trial of issue of fact. A final judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk’s office, as prescribed in article ninth of this title. Amended, L. 1911, ch. 509. Code Civ. Pro., § 1529. Effect on possession of vacating judgment. Where the plaintiff has taken possession of real property by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment. In such a case, if the defendant thereafter recovers final judgment in the action, it must award to him the restitution of the possession of the property; and he may have an execution thereupon for the delivery of the possession to him, as if he was plaintiff. Amended, L. 1911, ch. 509. Where, in an action in ejectment by the State to recover posses- sion of certain wild forest lands, a stipulation is entered into between the parties settling the litigation, by which it is agreed that the defendants shall take judgment dismissing the complaint and adjudging them to be the owners of a certain portion of the land, and shall convey to the people certain tracts, a judgment entered in accordance with said stipulation is void and may be set aside because it attempts to dispose of lands belonging to the forest preserve, in violation of the State Constitution, article 7, section 7. People v. Witherbee (1917), 178 App. Div. 368, 164 N. Y. Supp. 915. EJECTMENT. 1438 ARTICLE XVIII. COSTS IN EJECTMENT. (Fiero, Spec. Act., 3rd Ed., pp. 620-622.) The trial court in setting aside a verdict upon the ground that the preponderance of evidence was against the plaintiffs claim of title should not require the defendant to pay costs. Kahler v. Thron (1918), 155 App. Div. 744, 140 N. Y. Supp. 1002. Application. Matter of People v. Maltbie, 184 App. Div. 7438. FORECLOSURE. (Fiero, Spec. Act., 8rd Ed., pp. 632-835.) Art. I. Nature of the action and courts having jurisdiction. II. When action maintained. III. Parties plaintiff and defendant. IV. Complaint and notice of pendency of action. V. Answers and defenses. VI. Matters of practice. VII. Reference to compute amount due. VIII. Judgment. IX. Sale and confirmation. X. Judgment for deficiency. XI. Proceedings when mortgagee’s debt not all due. XII. Surplus proceedings. ARTICLE I. NATURE OF THE ACTION AND COURTS HAVING JURISDICTION. (Fiero, Spec. Act., 3rd Ed., pp. 634-639.) Susp. 1. Character of the action. 3. Courts having jurisdiction and place of trial. Subd. 1. Character of the Action. (Fiero, Spec. Act., 3rd Ed., pp. 634-636.) The foreclosure of a mortgage is equitable in its nature, although based on legal rights, and it is the province of a court of equity to see to it that a party invoking its aid shall have dealt fairly before relief is given. Germania Life Ins. Co. v. Potter (1908), 124 App. Div. 814, 109 N. Y. Supp. 435. Subd. 3. Courts Having Jurisdiction, and Place of Trial. (Fiero, Spec. Act., 3rd Ed., pp. 638-639.) The court obtains no jurisdiction of a non-resident defendant in a suit to foreclose a mortgage unless he be served by publication, or voluntarily appear in person or by attorney. Hope v. Shevill (1910), 187 App. Div. 86, 122 N. Y. Supp. 127, affd., 204 N. Y. 5638. A County Court is of limited jurisdiction and has, in an action 144 FORECLOSURE, 145 to foreclose a mortgage, simply incidental equitable powers. It has no power to pass upon the validity of the assignment and set it aside. Tonges v. Vanderveer Canarsie Improvement Syndicate (1914), 148 N. Y. Supp. 748. Where a suit of foreclosure is brought in a County Court and an infant, made a party defendant, alleges her disaffirmance and asks that the complaint be dismissed and her deed and the mort- gage be annulled and canceled, the County Court being of limited statutory jurisdiction has no power to adjudicate upon the infant’s. rights, for a determination thereof would involve an action to remove a cloud on title, or, if there had been no mortgage, an action of ejectment, and of these actions the County Court has no jurisdiction. Oneida County Savings Bank v. Saunders (1917), 179 App. Div. 282, 166 N. Y. Supp. 280. The Surrogate’s Court has power to entertain a creditor’s peti- tion for the distribution of surplus money, arising on the fore- closure of a mortgage, filed after the expiration of three years from the time of the granting of letters of administration, although the statute requires that the petition for the disposition of the real property of a decedent for the payment of debts and funeral ex- penses must be made within that period. J/atter of Bernstein (1908), 58 Mise. 115, 110 N. Y. Supp. 473. ARTICLE IT. WHEN ACTION MAINTAINED. (Fiero, Spec. Act., 3rd Ed., pp. 639-643.) A payment of interest or part of the principal renews a mort- gage so that an action may be brought to enforce it within twenty years after such last payment, and where there are several persons interested in the equity of redemption such payment hy one of them keeps alive the right of entry not only against him, but also against all other owners of the equity. Clute v. Clute (1910), 197 N. Y. 439. When owner of secondary rights in mortgage not entitled te maintain foreclosure. Clare v. New York Life Ins. Co. (1917), 178 App. Div. 877, 166 N. Y. Supp. 95. No suit to foreclose a mortgage which was executed by the mort- 10 146 FORECLOSURE, gagor at a time when the lands were in the actual possession of another person claiming under an adverse title can be maintained until such time as the mortgagor has actually recovered possession. Until the mortgagor has obtained possession the remedy of the mortgagee is limited to an action upon the bond. Hopkins v. Baker (1910), 140 App. Div. 460, 125 N. Y. Supp. 417. Where the maker of a note executes a mortgage to an indorser to secure him on account of said indorsement, and he has never been charged with liability thereon, the mortgage is not enforcible by the indorser or by an assignee. Furst National Bank of Bing- hamton v. Baker (1914), 163 App. Div. 72, 148 N. Y. Supp. 372. Where a suit of foreclosure has been prosecuted to judgment and sale, but there is some defect in the proceedings by reason of which existing liens or claims subordinate to the mortgage were not cut off, the purchaser will be treated as a mortgagee in pos- session and may again foreclose the mortgage as to such liens and claims. Vought v. Levin (1911), 142 App. Div. 623, 127 N. Y. Supp. 479. A decree of foreclosure will not be denied merely because the plaintiff began his action four days after his election to treat the mortgage due by reason of a default, unless it be shown that the plaintiff’s course of dealing misled the defendant. Weinstein v. Sinel (1909), 183 App. Div. 441, 117 N. Y. Supp. 346. Where by a participation mortgage agreement it clearly appears that it was the intention of the parties to give to the senior par- ticipant the entire right to manage, control and deal with the mort- gage and simply to preserve to the junior participant the right to receive from the senior participant the principal of his junior participation, with interest, the junior participant is not entitled to maintain an action to foreclose the mortgage and a demurrer to the complaint will be sustained. Clare v. New York Life Ins. Co. (1917), 100 Misc. 308, 166 N. Y. Supp. 647. A court of equity under the circumstances appearing in the present case should not entertain an action to foreclose a mortgage because of a technical default in the payment of taxes even though there was no offer to repay the taxes before action commenced, if the action was begun so quickly that there was no opportunity to do so, and the defendant upon learning that the plaintiff had taken advantage of the default tendered all taxes paid with interest and FORECLOSURE. 147 costs of action to date. Germania Life Ins. Co. v. Potter (1908), 124 App. Div. 814, 109 N. Y. Supp. 435. Equity will relieve a mortgagor from the operation of a clause contained in the mortgage giving the mortgagee the right to elect that the whole amount of principal and interest shall be presently due and payable in case of default in the payment of interest for thirty days, where the mortgagor’s default was occasioned by the appointment of temporary receivers of the mortgagor who were in possession of its assets at the time of default and during the thirty days thereafter. Smith v. Lamb (1908), 59 Mise. 568, 111 N. Y. Supp. 455. Where a mortgagor of real estate, after repeated demands, fails to have the buildings thereon insured and permits them to become vacant, making it impossible for the mortgagee to effect such in- surance, he is, under the usual insurance clause of the mortgage giving him the option to declare the whole sum secured by the mortgage due and payable, authorized by section 254 (3) of the Keal Property Law to bring an action to foreclose because of the mortgagor’s breach of his covenant to insure. Marlatt v. Hold- ridge (1916), 97 Mise. 456, 161 N. Y. Supp. 148. ARTICLE ITI. PARTIES PLAINTIFF AND DEFENDANT. (Fiero, Spec. Act., 3rd Ed., pp. 643-661.) Susp. 1. Parties plaintiff. 2. Necessary and proper parties defendant. Cope Civ. Pro., § 1627. Person liable for mortgage debt may be made defend- ant, etc.; when people of state may be made a party. Subd. 1. Parties Plaintiff. (Fiero, Spec. Act., 3rd Ed., pp. 643-647.) The assignee of a mortgage is a “ party in interest” within the meaning of section 449 of the Code of Civil Procedure and en- titled to sue for foreclosure, although the assignment was made to him merely for this purpose. Morrison v. Schmeman (1915), 166 App. Div. 264, 151 N. Y. Supp. 607. An election to declare a mortgage due for failure to pay an installment of interest or taxes may be made by an assignee of 148 FORECLOSURE, the mortgagee. Corporate Investing Co. v. Gracehull Realty Co. (1913), 157 App. Div. 259, 142 N. Y. Supp. 131. One of two trustees under a mortgage executed by a railroad company to secure its bonds may sue alone to foreclose the mort- gage making his cotrustee a party defendant without alleging that he requested the cotrustee to join as plaintiff, where the complaint states that the cotrustee is a director of the defendant mortgagor, and therefore, is not qualified to represent the bondholders in the suit. Cumming v. Middletown, Unionville and Water Gap R. R. Co. (1911), 147 App. Div. 105, 131 N. Y. Supp. 710. Subd. 2. Necessary and Proper Parties Defendant. (Fiero, Spec. Act., 3rd Ed., pp. 647-659.) Code Civ. Pre., § 1627. Person liable for mortgage debt may be made defendant, etc., when people of state may be made a party. 1. Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the action; and if he has appeared or has been personally served with the summons, the final judg- ment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mortgaged property, and the application of the proceeds pursuant to the directions contained therein. 2. The people of the state of New York may be made a party defendant to an action for the foreclosure of a mortgage on real property, where the people of the state of New York have an interest in or a lien on the said real property subsequent to the lien of the mortgage sought to be foreclosed in said action, in the same manner as a private person. In such a case the summons must be served upon the attorney-general, who must appear in behalf of the people, but where the people of the state of New York are made a party defendant, as herein provided, the complaint shall set forth, in addition to the other matters required to be set forth by the code of civil procedure detailed facts showing the particular nature of the interest in or the lien on the said real property of the people of the state of New York, and the reason for making the people a party defendant. Upon failure to state such facts, the complaint shall he dismissed as to the people of the state of New York. The commissioners of the land office, whenever they deem it for the best interests of the state may order the treasurer, on the warrant of the comptroller, to pay off and cancel any mortgage, or encum- brance or any amount due thereon existing on any lands belonging to the state, or in which the state has an interest other than the lien of a tax under article ten of the tax law, to perfect in the state a title to any such lands or to protect the state’s interests therein. In all such actions wherein the commissioners of the land office are so empowered, the plaintiff shall not be entitled to costs if the people of the state are made a party defendant, unless the commissioners of the land office, after a full presentation of the facts to them, shall have determined before the action of foreclosure is brought against the state that the interests of the state did not warrant FORECLOSURE. 149 their making an order for the payment or cancellation of said mortgage, or encumbrance or any amount due thereon, or unless the commissioners of the land office shall have failed to make such determination within three months after such full presentation of facts shall have been made to them by verified statement in writing, and duly filed with the secretary of said commissioners at his office in the city of Albany, nor unless a certified copy of the referee’s or sheriffs report of sale filed in the action shall have first been duly served upon the attorney-general; and in no case wherein the people are made a party defendant because of an interest other than a lien under article ten of the tax law, shall any additional allowance under sections three thousand two hundred fifty-two or three thousand two hundred fifty-three of this act be made to the plaintiff. Amended by L. 1899, ch. 528; L. 1908, ch. 284; L. 1911, ch. 25; L. 1912, ch. 888; L. 1916, ch. 831; L. 1917, ch. 773. When all parties in interest should be brought in before judg- ment. Commercial Trust Co. v. Peck (1909), 185 App. Div. 732, 119 N. Y. Supp. 946. In a foreclosure action, the maker of a bond, given as collateral security, should be made a party defendant in order to avoid a multiplicity of suits. Hochstein v. Schlanger (1912), 150 App. Div. 124, 134 N. Y. Supp. 704, affd., 208 N. Y. 513. Persons who have guaranteed the payment of a mortgage debt are proper parties defendant in an action of foreclosure. Wein- stein v. Sinel (1909), 183 App. Div. 441, 117 N. Y. Supp. 346. Where a mortgagor dies intestate pending a suit of foreclosure her children become the owners of the equity of redemption, sub- ject to their father’s curtesy, and they should be made parties defendant. Gruner v. Ruffner (1909), 184 App. Div. 837, 119 N. Y. Supp. 942. Where in a suit to foreclose a third mortgage it appears that the amount due on a first mortgage is in dispute, a defendant, who is a receiver and trustee in bankruptey and owner of a fifth mort- gage given to the bankrupt, is entitled to have the holder of the first mortgage made a party in order that he may ascertain just how much there is due upon such mortgage, and be in a position to bid intelligently at the sale, to the end that the whole controversy respecting the liens upon the land in question may be settled. Quinlan v. Olson Construction Co. (1912), 153 App. Div. 140, 138 N. Y. Supp. 216. Parties who on the assignment of a mortgage guarantee the payment of the debt while not necessary parties to a foreclosure are proper parties, as they may be held for a deficiency on the 150 FORECLOSURE. sale. Morrison v. Slater (1908), 128 App. Div. 467, 112 N. Y. Supp. 855. On the death of a mortgagor intestate her heirs are necessary parties to a suit of foreclosure, but not her administrator. But such administrator is a proper, as distinguished from a necessary defendant on foreclosure, as the estate is liable for a deficiency. Although the estate of a deceased mortgagor be insufficient to pay his debts, general creditors have no such lien upon lands as to make them necessary parties to foreclosure. Heidgerd v. Reis (1909), 185 App. Div. 414, 119 N. Y. Supp. 921. Where a testator owning lands incumbered by a first and second mortgage devises the lands to children living at his death, in equal proportions, giving to his executors a power of sale, and after his death, in a proceeding to foreclose the second mortgage by adver- tisement, all the devisees are made parties and there is no question as to the regularity of the foreclosure, the executors, who bought in the lands on the foreclosure sale, hold the same as personalty and the title of the devisees is completely divested. Hence, on a subsequent foreclosure of the first mortgage, it is immaterial that all of the devisees were not made parties defendant, as their in- terest had been already extinguished. McCarty v. Downes (1914), 161 App. Div. 667, 146 N. Y. Supp. 973. Where, after the assignment of a mortgage, the mortgagor pays interest to the assignor without notice or knowledge of the assign- ment, the assignee may make his assignor a party defendant to a suit of foreclosure for the purpose of recovering the payments re- ceived by him. As such suit is in equity, an assignor who receives the payments after the assignment is a proper, although not neces- sary, party defendant. Moreover, such assignor is made a proper party defendant by an allegation that he has some lien or interest which, if it exists, accrued subsequent to the mortgage and is sub- ordinate thereto. People’s Trust Co. v. Gomolka (1908), 129 App. Div. 12, 113 N. Y. Supp. 49. In an action to foreclose a mortgage, the committee of the in- competent defendant who executed the mortgage is not a neces- sary party; nor is it necessary in such a case to allege and prove that the court has granted leave to maintain the action against the committee. Heburn v. Reynolds (1911), 73 Misc. 73, 132 N. Y. Supp. 460. FORECLOSURE. 151 One who has a claim against a corporation for damages for per- sonal injuries, upon which she has once recovered a judgment that was afterwards reversed upon appeal, has no interest in the cor- porate property which entitles her to be made a defendant in an action brought for the foreclosure of a mortgage thereon given to secure the payment of corporate bonds. Clinton v. South Shore Natural Gas & Fuel Co. (1908), 61 Mise. 339, 118 N. Y. Supp. 289. Where,:in an action for the foreclosure of a mortgage on real property, a Junior mortgage is held by a foreign corporation for which permanent receivers have been appointed in the State where the corporation was organized, such permanent receivers are neces- sary parties defendant. Ely v. Mathews (1908), 58 Misc. 365, 110 N. Y. Supp. 1102. One may not be made a party to a foreclosure action on motion of a defendant, unless he has some pecuniary interest in the sub- ject of the action and the moving party will be prejudiced by a denial of the motion. Where no deficiency judgment is asked for in a foreclosure action a nonresident mortgagor or the representa- tives of one who is dead, or his wife, whose whereabouts are un- known, or the grantee, who has assumed and agreed to pay the mortgage but whose grantor has not so agreed, are not necessary or proper parties defendant. Gano v. Potter (1918), 105 Mise. 482,173 N. Y. Supp. 528. Where a grantee of the purchaser from the mortgagor conveys his interest in the mortgaged premises, he is not a proper party to an action to foreclose the mortgage. Crowe v. Malba Land Co. (1912), 76 Mise. 676, 185 N. Y. Supp. 454. ARTICLE IV COMPLAINT AND NOTICE OF PENDENCY OF ACTION. (Fiero, Spec. Act., 3rd Ed., pp. 661-665.) Susp. 1. Complaint. 2. Notice of pendency of action. Subd. 1. Complaint. (Fiero, Spec. Act., 3rd Ed., pp. 661-664.) A complaint in an action to foreclose a mechanic’s lien, which fails to state whether any other action has been brought to recover 152 FORECLOSURE. any part of the debt for which the lien was filed, is insufficient. Bachmann v. Spinghel (1914), 164 App. Div. 725, 149 N. Y. Supp. 610; Dahl v. Levenberg (1916), 172 App. Div. 919, 157 .N. Y. Supp. 14. A criticism that the complaint did not state whether any other action had been brought, not having been raised in the Trial ‘Court, where an amendment might have been permitted, is un- -availing on appeal. Szemko v. Weiner (1917), 176 App. Div. ‘620, 163 N. Y. Supp. 382. Where a complaint in an action to foreclose mechanic’s liens is insufficient in that it does not state whether any other action has been brought to recover any part of the lien debt, the plaintiff may nevertheless recover a personal judgment for the sums due him under section 54 of the Lien Law where the allegations of the com- ‘plaint and proof are sufficient. Prime v. Hughes (1916), 174 App. Div. 406, 159 N. Y. Supp. 1041. Where a complaint in an action to foreclose a lien originally stated that “ no other action or proceeding at law or in equity has been brought to foreclose the said plaintifi’s said lien or claim,” and at the opening of the trial the enor, without objection, was permitted to amend the complaint by adding the words ‘“ Or to recover the amount due to the plaintiff,” the requirements of the Code were satisfied and objection to the sufficiency of the com- plaint cannot be taken on appeal. Gates & Co., Inc. v. Nat. Fair & Exposition Assn. (1916), 172 App. Div. 581, 158 N. Y. Supp. 1070. A complaint in a suit for the foreclosure of a mortgage upon realty alleged that the bond and mortgage had been assigned by the mortgagee to a title company, which had transferred the same to the plaintiff, who had elected, in accord with certain provisions of the mortgage, that the whole principal sum be immediately due and payable on account of the failure of the mortgagor to pay an installment of interest and certain taxes. A written agreement entered into by the mortgagee and the title company at the time of the assignment to the latter was set forth, which provided, among other things, that the title company owned said bond and mort- gage to the extent of a certain amount, with interest, and that the “is the owner of the balance of said mortgage debt remaining,” but that the ownership of the title company is superior mortgagee FORECLOSURE. 153 to that of the mortgagee, and that it should have the right to collect all interest, to accept payments, accounting to the assignor for her share and to foreclose the same. It also appeared on the face of the complaint that prior to the commencement of the suit the mortgagee, having refused plaintiff's request to join therein, was made a party defendant. Held, that the complaint stated facts sufficient to constitute a cause of action, and that a demurrer thereto was properly overruled. Corporate Investing Co. v. Grace- hull Realty Co. (1913), 157 App. Div. 259, 142 N. Y. Supp. 131. An allegation of the assignment of a mortgage without alleging the assignment of the bond, is insufficient in an action to foreclose the mortgage. The allegation “ that the plaintiffs now are and have been since the date of said assignment, the true and lawful owners of said bond and mortgage,” is sufficient to cure the defect. Schade v. McGovern (1912), 2 Bradb. 143. A complaint in a suit to foreclose a mortgage will be sustained on demurrer where in substance it alleges that the bond and mort- gage were given by the defendant to the plaintiffs assignor to secure the payment of certain notes which in their turn were given to secure the payment of certain judgments recovered by the assignor against the defendant, and that the agreement, notes, bond and mortgage, together with the moneys due or to grow due thereon or thereunder, were assigned to the plaintiff. Williams v. Cornell (1910), 187 App. Div. 795, 122 N. Y. Supp. 670. A complaint seeking to foreclose a mortgage on lands which alleges that the mortgagee died at a specified date leaving one H. her only heir at law and next of kin, who became the owner of said mortgage “ by inheritance,” and that the said H. died leaving a will duly admitted to probate, by which he bequeathed said mort- gage to a person named as executrix, who assigned the same to the plaintiff, sufficiently states the plaintiff’s title although the use of the word “inheritance” be inartificial. Ward v. Bronson (1908), 126 App. Div. 508, 110 N. Y. Supp. 335. In the complaint in an action for the foreclosure of a mortgage upon real property, it is not necessary to allege that the recording tax upon the mortgage has been paid. Moore v. Lindsay (1908), 61 Mise. 176, 114 N. Y. Supp. 684. Where a complaint in foreclosure sets forth a default in the payment of taxes on the mortgaged property and alleges that pur- 154 FORECLOSURE. suant to the terms of the mortgage the plaintiff elects to consider the principal immediately due and payable, he will be granted leave to serve a supplemental complaint pleading a subsequent default in the payment of interest which also gives him the right to declare the principal due. Dunn v. O'Connor (1918), 104 Mise. 426, 172 N. Y. Supp. 336. The complaint in an action to foreclose a mortgage which does not allege that its payment was assumed by subsequent grantees is insufficient as against the original mortgagor in the absence of an allegation that at the time of the making of an extension agreement between the mortgagee and grantee the premises were worth less than the amount due on the mortgage. Meuser v. Kirschbaum (1914), 84 Mise. 259, 145 N. Y. Supp. 677. Subd. 2. Notice of Pendency of Action. (Fiero, Spee. Act., 3rd Ed., pp. 664-665.) See Rear Properry, Provisions Revatine To, Articites V-VII. ARTICLE V. ANSWERS AND DEFENSES. (Fiero, Spec. Act., 3rd Ed., pp. 665-688.) Supp. 1. Answer generally. al 2. Counterclaim. 3. Tender as a defense. 4. Demurrer. 5. Relief granted defendants. Subd. 1. Answer Generally. (Fiero, Spec. Act., 3rd Ed., pp. 665-680.) Payment is an affirmative defense, and the burden of pleading and proving the same is upon the defendants. Redmond v. Hughes (1912), 151 App. Div. 99, 102, 185 N. Y. Supp. 843; Gamble v. Lewis (1914), 88 Mise. 139, 151 N. Y. Supp. 778. Tn an action to foreclose a mortgage usury may be pleaded either as a defense or as a counterclaim, or both, and that the matter is alleged both as “a defense and a counterclaim ” does not make it any less a counterclaim. Charlton v. Ward (1918), 102 Mise. 238, 168 N. Y. Supp. 876. FORECLOSURE. 155 An agreement, based upon a suflicient consideration extending the time of the payment of a mortgage, is a valid defense to an action of foreclosure commenced before the time to which the payment of the mortgage debt has been extended. Arebs v. Car- penter (1908), 124 App. Div. 755, 109 N. Y. Supp. 482. Answer of junior mortgagee. Oceanic Investing Co. v. Twenty- Bighth Street and Seventh Avenue Realty Co. (1914), 164 App. Div. 885, 148 N. Y. Supp. 560. A defendant in a suit of foreclosure, who in a written agree ment with the plaintiff has admitted that the latter holds a certain recorded bond and mortgage which is the subject of the foreclosure, cannot allege that he has no knowledge or information sufficient to form a belief as to the truth of allegations of the complaint alleging the execution and delivery of the mortgage and its assign- ment to the plaintiff. Such denials are frivolous. Preston v. Cuneo (1910), 140 App. Div. 144, 124 N. Y. Supp. 1031. Where in a suit to foreclose a second mortgage the defendant alleges lack of knowledge or information sufficient to form a belief as to the plaintiff’s allegation that he has paid moneys for taxes on the lands and interest upon the prior mortgage in order to protect his lien, pursuant to covenants in the mortgage, an issue of fact is raised so that the plaintiff is not entitled to judgment on the pleadings. Such allegation of lack of knowledge or in- formation is not frivolous or sham. Godwin v. Liberty-Nassau Building Co. (1911), 144 App. Div. 164, 128 N. Y. Supp. 791. Where in an action to foreclose a purchase-money mortgage it appears that the defendant received a warranty deed of the premises, paying a portion of the purchase price and giving a bond and mortgage to secure the payment of the balance, and that he is still in the possession of the premises and there has been no effort to evict him, he cannot be permitted to plead as a defense alleged defects of title, or that he has received no consideration for the bond and mortgage. If there are any defects in the title he has an adequate remedy at law. Meserole v. Williams (1912), 153 App. Div. 306, 137 N. Y. Supp. 1046. A grantee of land in undisturbed possession and enjoyment thereof who has given a purchase-money mortgage in part payment therefor may not defend against foreclosure by alleging failure of title in his grantor. Peabody v. Kent (1914), 213 N. Y. 154. 156 FORECLOSURE. In a suit for the foreclosure of a real estate mortgage, allega- tions that the mortgagees had a chattel mortgage on certain per- sonal property as collateral to the mortgage in question, which property was in possession of the mortgagor when the mortgage became due, and that the mortgagees carelessly and negligently allowed said property to be taken and sold by the receiver of the mortgagor and the proceeds diverted from the mortgage, do not constitute a defense, where there is no allegation as to the time said property was sold and it does not appear that a purchaser at the time had any interest in such property or that the mortgagor was injured as the proceeds went to its creditors. Dry Milk Co. v. Dairy Products Co. of New York (1916), 171 App. Div. 296, 156 N. Y. Supp. 869. Where the owner of a leasehold, who has not assumed a prior mortgage thereon, pays interest to the mortgagee in consideration of his agreement to extend the mortgage to a specified date, there is a good consideration for the contract to extend. Hence, an answer setting out the facts aforesaid states a good defense to an action of foreclosure brought before the expiration of the exten- sion, and it should not be stricken out as frivolous. This is so, although there be no allegation as to an extension of payment of the bond secured by the mortgage, as such is the reasonable intend- ment. Krebs v. Carpenter (1908), 124 App. Div. 755, 109 N.Y. Supp. 482. A mortgagor may assert equities existing between him and the mortgagee at the time of the assignment of the mortgage to the plaintiff, though the assignee had no actual notice thereof when she took the assignment. Cassel v. Regierer (1908), 114 N. Y. Supp. 601. An answer, in an action to foreclose a mortgage on real prop- "erty, setting up that the defendant is the owner of a subsequent mortgage upon the premises and setting up another action pend- ing which is based entirely upon such junior lien, constitutes no defense to the plaintiff’s action. White v. Gibson (1908), 61 Mise. 436, 113 N. Y. Supp. 983. In a suit by an assignee of a real estate mortgage for the fore- closure thereof, allegations that the plaintiff’s assignor, holding a chattel mortgage upon certain property as collateral to the mort- gage sought to he foreclosed, seized said personal property and FORECLOSURE. 157 stored the same; that it thereby depreciated in quality and value, and that the value thereof at the time of seizure should be applied upon the mortgage debt, do not establish any liability upon the part of the assignor for loss in value on account of the storage, but may be treated as an allegation that the fair value of the property should be allowed as a payment upon the real estate mortgage. Dry Milk Co. v. Dairy Products Co. of New York (1916), 171 App. Div. 296, 156 N. Y. Supp. 869. Where a mortgagor, who had conveyed property and guaranteed the payment of the bond and mortgage thereon, in order to prevent a threatened foreclosure, delivered to an assignee of the bond and mortgage his check and promissory note for the balance due and received a receipt stating that the check and note had been re- ceived “as additional security,” and that when collected the pro- ceeds should be held as such, and that if the balance due on the bond should be collected from any other person liable thereon it should be paid over to the mortgagor, a subsequent payment of the check and note did not operate as a payment in full satisfac tion of the bond and mortgage so as to constitute a defense in a suit for foreclosure by a subsequent holder. Morrison v. Schme- man (1915), 166 App. Div. 264, 151 N. Y. Supp. 607. An answer in an action to foreclose a mortgage on real estate which denies, in the words of the complaint, that defendant had failed to comply with the conditions of the mortgage by omitting to pay the principal sum, or that the sum claimed, or any sum whatever, remains due and unpaid, may not be stricken out as sham on the ground that it involves a negative pregnant. Where a separate defense, in pleading an agreement for the extension of the mortgage debt, clearly sets up facts which cannot be deter- mined on affidavits, a motion to strike out the answer as sham will be denied, as whether there was an extension of the mortgage is a question of fact. Carlton v. Lawrence (1912), 77 Mise. 4573, 137 N. Y. Supp. 200. In an action to foreclose a mortgage given by defendant, an answer which after a denial upon information and belief of each and every allegation of the complaint alleges upon information and belief that on a certain date he by his agent, naming him, offered and duly tendered to the attorney and agent of plaintiff, naming him, the full amount due on the alleged bond and mort: 158 FORECLOSURE. gage together with interest to date is frivolous on its face, and plaintiff's motion for an order overruling the answer as frivolous and for judgment on the pleadings will be granted. Cook v. Broughton (1918), 102 Misc. 260, 168 N. Y. Supp. 818. Subd. 2. Counterclaim. (Fiero, Spec. Act., 3rd Ed., pp. 680-682.) In a suit for the foreclosure of a mortgage in which a deficiency judgment is asked the court should not disregard a counterclaim by the defendant for damages based upon the ground that the title to the property at the time of the conveyance by the plaintiff to her was in the city of New York, and in the State, and a judg- ment for the plaintiff on the pleadings should be reversed. Sumon v. Neef (1913), 160 App. Div. 46, 144 N. Y. Supp. 753. A counterclaim in an equitable action was unknown at common law and, therefore, the issues raised thereby are not within the constitutional provision as to trial by jury. Manhattan Life Ins. Co. v. Hammerstein Opera Co. (1918), 184 App. Div. 440, 171 N. Y. Supp. 678. Where in an action to foreclose a purchase-money mortgage brought by an assignee, the grantee of the owner of the equity sets up as a counterclaim certain alleged breaches of a covenant against incumbrances contained in the deed from the mortgagee, but it appears that the grantee is in undisturbed possession; that no action is pending for possession by an adverse claimant, and that the alleged defects in title do not amount to a total failure of consideration, and there is no allegation in the answer of fraud in the sale of the premises; that the owner had lost the land in whole or in part, or that he had suffered any damage by breach of the covenant, the grantee is not entitled to a trial upon the counterclaim. A judgment on the pleadings in favor of plaintiff will be affirmed. Kouwenhoven v. Gifford (1911), 144 App. Div. 355, 128 N. Y. Supp. 1129. Where a grantor of land sues to foreclose a purchase-money mortgage executed by the grantee, the latter, holding under a full covenant deed, cannot counterclaim damages sustained because of an alleged breach of covenant where there is pending and un- determined a legal action brought by the grantee against the grantor to recover damages for said breach of covenant if defendant FORECLOSURE. 159 neither asks nor offers to discontinue the prior action. Under the circumstances the defendant will be held to have elected to pursue his remedy in the prior action and thus to have waived his counter- claim in the suit of foreclosure. Bailey v. Fear (1918), 182 App. Div. 331, 169 N. Y. Supp. 581. Subd. 3. Tender as a Defense. (Fiero, Spec. Act., 8rd Ed., pp. 682-685.) The defendant is not entitled to credit for a tender which he attempted to make after the action is begun, for the plaintiff was not then required to accept it. Weyand v. Park Terrace Co. (1909), 135 App. Div. 821, 120 N. Y. Supp. 192, revd., 202 N. Y. 231 on other grounds. The filing of a Its pendens and the service of a summons and complaint in an action of foreclosure upon a tenant of the prop- erty constitutes a commencement of the action, and a subsequent tender of payment by the mortgagor, even if made before service was made upon her, is insufficient to relieve her from liability for costs. Harvey v. Mooney (1915), 168 App. Div. 169, 153 N. Y. Supp. 268. Although the tender of taxes and costs was made in the form of a certified check the plaintiff cannot take advantage of the fact that money was not tendered if it did not refuse the tender upon that ground. Germania Life Ins. Co. v. Potter (1908), 124 App. Div. 814, 109 N. Y. Supp. 435. A defendant in a suit to foreclose a mortgage upon lands who is not the principal debtor, on tendering to plaintiff moneys suffi- cient to satisfy the mortgage, with costs, is entitled to an order requiring the plaintiff to assign the bond and mortgage to the person from whom the defendant obtained the moneys with which to make the payment. Manilla Anchor Brewing Co. v. Raw Silk Trading Co. (1914), 163 App. Div. 30, 148 N. Y. Supp. 119. An election to declare a mortgage due for failure to pay in- terest must be seasonably made, and where one to whom such mortgage has been assigned as security for a loan has not so elected, and the mortgagor tenders the interest to the assignee prior to an action of foreclosure by the mortgagee, the action is barred. Such tender of interest need not be kept good by pay- ment into court in order to be available as a defense to foreclosure. 160 FORECLOSURE. Cresco Realty Co. v. Clark (1908), 128 App. Div. 144, 112 N. Y. Supp. 550. Although a junior mortgagee who tenders to the holder of a senior mortgage then under foreclosure the amount due thereon, with costs of action, is entitled to an assignment of the prior lien in order to protect his own, he is not entitled to bind the senior mortgagee as to the amount due, and must accept an assignment without recourse to him and without covenants express or im- plied. Boocock v. Wood (1908), 128 App. Div. 645, 113 N. Y. Supp. 46. Tender of payment held to have been kept good and to con- stitute a good defense. Bond & Mortgage Guarantee Co. v. White (1913), 81 Mise. 8, 142 N. Y. Supp. 1038. Where upon the trial of an action to foreclose a trust mortgage for default in payment of interest, the mortgagor tendered the full amount of interest due to the day of trial, which was refused and the money was paid into court, whereupon the trial justice dismissed the complaint, and the trustee appealed from the judg- ment of dismissal to the Appellate Division, and thereafter, but while the appeal was pending, the Appellate Division, upon the mortgagor’s motion and affidavits showing the payment of all in- terest coupons on all outstanding bonds to the date of the motion, dismissed the appeal, its decision, where it appears that the coupons were not presented by the trustee, and that it knows nothing about the payment of the interest, is erroneous and the judgment entered upon the order dismissing the appeal must be reversed and the case be sent back to the Appellate Division to consider the ques- tions raised upon the appeal from the judgment of the Trial Court. Metropolitan Trust Co. v. Long Acre Electric Light and Power Co. (1918), 228 N. Y. 69, revg., 164 App. Div. 945. Subd. 4. Demurrer. (Fiero, Spee. Act., 3rd Ed., pp. 685-686.) Where the complaint in an action to foreclose the mortgage sought to obtain judgment for deficiency individually against. the widow and next of kin of the deceased mortgagor, who was per- sonally liable for the mortgage debt, a demurrer by one of the heirs at law of the deceased mortgagor will be sustained. Buckley v. Beaver (1917), 99 Misc. 648, 166 N. Y. Supp. 131. FORECLOSURE. 161 Subd. 5. Relief Granted Defendants. (Fiero, Spec. Act., 3rd Ed., pp. 687-688.) When an action to foreclose a purchase-money mortgage is de- fended upon the ground that the grantors possessed no valid power to convey, which fact was apparent to the grantee when he took the conveyance and gave the mortgage, and there is no claim of eviction by paramount title or an unconditional offer of surrender of the mortgaged premises, there is no equitable basis for imposing, the expense of improvements on the mortgagee. Peabody v. Kent (1914), 2138 N. Y. 154. Where on appeal from a judgment of foreclosure it appears. that the plaintiff took an unconscionable advantage by declaring: the mortgage due because of the defendant’s failure to pay taxes: as covenanted, on the very day they became due, a court of equity will reverse the decree and grant a new trial, although the answer did not ask for affirmative relief from the default, but merely demanded a dismissal of the complaint. Germania Life Ins. Co. v. Potter (1908), 124 App. Div. 814, 109 N. Y. Supp. 435. A mortgagee who seeks to avail himself of a clause in a subse quent deed by which the grantee assumed the mortgage takes under and through the grantor and subject to any defenses arising out of the contract between the original parties to the deed; and where the grantee has in his turn conveyed to parties for whom he took title, they may, when sought to be held for a deficiency on fore: closure, defend upon the ground that the assumption clause was inserted through inadvertence and ask the reformation of the instrument, if the mortgagee has not acted upon the faith of the assumption to his detriment. Arnstein v. Bernstein (1908), 127 App. Div. 550, 111 N. Y. Supp. 987. Where the complaint alleges defendant’s mortgage to be in- ferior and defendant alleges and shows that his mortgage is superior and asks for the dismissal of the complaint, a court of equity, all parties being before the court, will decree foreclosure and apply the proceeds first to the payment of defendant’s mort- gage. Lala v. Oldacre (1916), 160 N. Y. Supp. 435. In an action for the foreclosure of a mortgage on real property, a subsequent lienor who is made a party defendant has no right to require a determination of the amount of his claim where he 11 162 FORECLOSURE. has not served his answer upon the other defendants, but is relegated to the usual proceeding for the distribution of surplus moneys, if any there be. Clement v. Congress Hall (1911), 72 Mise. 519, 182 N. Y. Supp. 16. A defendant, on a foreclosure of real property, will be com- pelled to account and reconvey under an agreement that, when it gets its money out of the property, the balance shall belong to the mortgagor, where it appears that it has received more than the amount of its claims, with interest, costs, and expenses from a private sale or exchange of a part of the mortgaged premises. Easling v. Independent Brewing Co. (1916), 160 N. Y. Supp. 529. ARTICLE VI. MATTERS OF PRACTICE. (Fiero, Spec. Act., 8rd Ed., pp. 688-735.) . Guardian ad litem for infant defendant. . Miscellaneous rules and decisions. . Evidence. Susp. 2 3 4 5. Trial. 6 7 8 9 . Stay of proceedings. . No other action to be brought. . Receiver, when appointed, powers and duties. . Costs. Subd. 2. Guardian ad Litem for Infant Defendant. (Fiero, Spec. Act., 3rd Ed., pp. 691-693.) Although section 478 of the Code of Civil Procedure empowers the court to designate a person to act as guardian ad litem for a non-resident infant defendant under certain circumstances, such order can be granted only where the infant has already been made ‘defendant, and is residing out of the State, or is temporarily absent therefrom. Gruner v. Ruffner (1909), 134 App. Div. 837, 119 N. Y. Supp. 942. Where, in an action for the foreclosure of a mortgage, an order appointing a guardian ad litem for an infant defendant under the age of fourteen years fails to designate the person to receive service of the summons on behalf of the infant, as required by section 426 of the Code of Civil Procedure, the court is without jurisdiction to render a judgment which will bar the infant from all interest in the property, and a motion to compel the purchaser FORECLOSURE. 163 at the foreclosure sale to take the title will be denied. Pines v. Sullivan (1918), 103 Mise. 443, 170 N. Y. Supp. 252. Subd. 3. Miscellaneous Rules and Decisions. (Fiero, Spee. Act., 8rd Ed., pp. 693-706.) Plaintiff in an action to foreclose a mortgage on real estate, con- taining no bond clause, need not prove non-payment of the sum claimed to be due, but the burden of pleading and proving pay- ment is on defendant. Gamble v. Lewis (1914), 88 Mise. 139, 151 N. Y. Supp. 778. Where in a suit to foreclose a mortgage a defendant, holding another mortgage which antedates the plaintiff’s mortgage but was not recorded until after that of the plaintiff, claims priority on the theory that the plaintiff had knowledge of the prior in- cumbrance and so is not entitled to the benefit of the Recording Act, she is under the burden of affirmatively establishing said plea. Kirchhoff v. Gerli (1916), 171 App. Div. 160, 156 N. Y. Supp. 770. In an action to foreclose a mortgage an election to demand pay- ment of the principal sum will not be enforced if unconscionable. Bieber v. Goldberg (1909), 133 App. Div. 207, 117 N. Y. Supp. 211. In an action to foreclose a mortgage defendants who have ap- peared and demanded service of all papers, but do not answer, are entitled to eight days’ notice of application for judgment; and where no such notice was given them nor any notice of trial served on them the judgment will not be signed unless plaintiff procures a waiver of such notice from such defendants. Selinger v. The G. C., Inc. (1913), 81 Mise. 343, 142 N. Y. Supp. 194. It cannot be held, before an accounting, that the use and occu- pation of mortgaged premises by the mortgagee is payment of the interest on the mortgage, and an application to modify the judgment in foreclosure by striking out the provision thereof for the payment of interest must be denied. Buffalo Savings Bank v. Polish Catholic Church of Holy Mother of the Rosary of Buffalo (1914), 87 Mise. 343, 150 N. Y. Supp. 726. Where a judgment in favor of the defendant in an action to foreclose a mortgage must be reversed, but the facts cannot be changed, an interlocutory judgment will be entered and the case 164 FORECLOSURE. remitted to the Special Term to ascertain the amount due. 'Wey- and v. Randall (1909), 181 App. Div. 167, 115 N. Y. Supp. 279. In an action to foreclose a mortgage it is error for the court to refuse to find that an infant holding a prior mortgage satisfied the same during her infancy in consideration for a conveyance of other lands, as otherwise it is impossible to make an equitable dis- position of the rights of the parties, for the infant still retains her right to disaffirm at majority. Foy v. Salzano (1912), 152 App. Div. 47, 136 N. Y. Supp. 699. One of several comortgagees holding the mortgage in her own name for her own and their benefit, may purchase the property on the foreclosure of a first mortgage to protect her own interest, and will not be deemed to hold the property in trust for her co- mortgagees, in the absence of an agreement to that effect, or con- duct on her part which misled the other mortgagees to their prejudice. Rodger v. Bowie (1909), 134 App. Div. 596, 119 N. Y. Supp. 177. Where in an action to foreclose a mortgage upon property in- cumbered by a lease subordinate to the mortgage and having a long time to run, the tenant in possession is made a party defendant and judgment cutting off his lease is prayed for, there is an irre- vocable election of remedies, and where the tenant immediately upon the entry of judgment vacates the premises, both the mort- gagee which became the purchaser on the sale and foreclosure and the plaintiff, its grantee, which sues for rent on the theory that the lease was not cut off by said sale, are equitably estopped from insisting that said defendant be held to its lease. An order dis- continuing a foreclosure action and vacating the judgment therein entered, as against the tenant, who never resumed possession of the leased premises, was not effective to hold him for rent. Four Hundred Sixty-One Highth Avenue Co. v. Childs Co. (1918), 181 App. Div. 742, 168 N. Y. Supp. 948. Where in an action to foreclose a mortgage, the summons and complaint were duly served upon all of the defendants personally, and all but one defaulted in appearance, and that one appeared by his attorneys, but defaulted in answering, and thereafter gave the plaintiffs attorney a written waiver upon the back of the notice of appearance that “ notice of application for reference and judg- ment of foreclosure and sale is hereby waived ” said waiver con- FORECLOSURE. 165 stituted the consent required by section 1214 of the Code of Civil Procedure to make the application for judgment to a justice of the Supreme Court out of court. Bartlett v. Lundin (1918), 182 App. Div. 117, 169 N. Y. Supp. 391. Where a trust company, as trustee of bondholders, at their instance and under the terms of the mortgage securing the bonds, instituted an action to foreclose the mortgage for default in pay- ment of interest, the bondholders cannot on their own authority and without the sanction of the court take the control of the action and of the trust affairs out of the hands of the trustee. Metro- politan Trust Co. v. Long Acre Electric Light and Power Co. (1918), 223 N. Y. 69, revg., 164 App. Div. 945. Subd. 4. Evidence. (Fiero, Spec. Act., 3rd Ed., pp. 707-710.) Where in a suit for foreclosure it appears by the terms of the mortgage and is also alleged in the complaint that the bond is the principal security and the mortgage only collateral thereto, the plaintiff must either produce the bond or satisfactorily account for his failure to do so. Alverson v. Marshall (1913), 159 App. Div. 637, 145 N. Y. Supp. 96. A plaintiff suing to foreclose a mortgage must prove his owner- ship of the bond and mortgage in order to recover. Evidence examined, and held, that the plaintiff, having assigned the bond and mortgage, failed to establish ownership by virtue of a subse- quent reassignment and that the complaint was properly dis- missed. Fox v. Bainbridge (1912), 151 App. Div. 510, 135 N.Y. Supp. 926. Where, in an action to foreclose a purchase-money mortgage upon a farm brought by an assignee, the heirs of the owner of the mortgaged premises set up the Statute of Limitations as a prin- cipal defense, the assignor of the mortgage is not incompetent under section 829 of the Code of Civil Procedure to testify to payments, made upon the mortgage within twenty years and while he was the owner thereof, by the husband of the owner of the farm who worked and managed it for his wife, and made the payments as her agent and who died prior to the trial. IfcCarthy v. Stanley (1912), 151 App. Div. 358, 136 N. Y. Supp. 386. The holder of a second mortgage, taking advantage of a clause 166 FORECLOSURE. permitting him to demand payment of the principal after default in the payment of any tax or assessment for a certain period after it became due, brought a suit of foreclosure. A prior suit had been commenced for the foreclosure of said mortgage, but an agree- ment was entered into by which upon payment by the defendant of all the costs, and a certain sum in addition thereto, and the assumption by her of the payment of the principal of the mort- gage, the time of payment was extended and the action discon- tinued. Held, that although in the conveyance of the property to the defendant no reference was made to the mortgage in suit, evidence offered by the defendant to prove that she was ignorant of the existence of said mortgage when she purchased the prop- erty was properly excluded, for, as the mortgage had been recorded, she was chargeable with notice thereof. Hawkins v. Maxwell (1913), 156 App. Div. 31, 140 N. Y. Supp. 909, affd., 215 N. Y. 673. Where the complaint alleges that the lien of the defendant’s mortgage is subsequent to that of the plaintifi’s and this allega- tion is denied in the answer, evidence necessary to determine which mortgage is the first lien is admissible. Cutrzens’ Permanent Sav- ings & Loan Association v. Raupe (1909), 116 N. Y. Supp. 5917, affd., 139 App. Div. 927, 123 N. Y. Supp. 1110. Where in an action to foreclose the mortgage, which was put in evidence, the loss of the bond is satisfactorily shown by proof that upon a reassignment to plaintiff of the bond and mortgage by his attorney, to whom an assignment thereof had been made, the bend could not be found, and that plaintiff had neither assigned nor delivered the bond and mortgage to any one since the assignment to his attorney, and that at the commencement of the suit he was the owner of said bond and mortgage, judgment of foreclosure will be awarded for the amount claimed to be due. Peterson v. Meyer (1919), 105 Mise. 719, 175 N. Y. Supp. 92. Subd. 5. Trial. (Fiero, Spec. Act., 38rd Ed., pp. 710-711.) Although in an action for the foreclosure of a mortgage it is not competent for the court to try an adverse claim of title arising prior to the execution of the mortgage, it is competent for the court to try and decide an issue of estoppel with respect to such FORECLOSURE. 167 title. United States Trust Co. of New York v. Pleasant Ave. Realty Co. (1915), 167 App. Div. 762, 153 N. Y. Supp. 65. A defendant in a suit in equity for the foreclosure of a mort- gage, a lien upon real estate, who has a counterclaim stating causes of action at law may bring an action at law thereon in which case he has an absolute right to a trial by jury of the issues of fact, but if he sets up his cause of action by way of counterclaim in the suit in equity his right to a trial by jury will rest in the discre- tion of the court and his motion therefor, not made within twenty days of the joinder of issue as required by rule 31 of the General Rules of Practice, may be denied. Manhattan Infe Ins. Co. v. Hammerstein Opera ('o. (1918), 184 App. Div. 440, 171 N. Y. Supp. 678. Subd. 6. Stay of Proceedings. (Fiero, Spec. Act., 8rd Ed., pp. 711-713.) The right to a stay is a substantial right and the parties should be held to the terms of such stipulation until the expiration of the time limited, or until the commissioners have made an award for all the land to be taken. Mayer v. Jones (1909), 132 App. Div. 106, 116 N. Y. Supp. 300. After a suit had been begun to foreclose mortgages on lands. one M., who was not a party to the foreclosure, started an action to partition the same premises. The plaintiff in the foreclosure action, default having been made by all the defendants, moved for the appointment of a referee to compute the amount due. M. made a motion in the partition suit returnable on the same day, asking that all proceedings in the foreclosure action be stayed pending the determination of the partition suit. Held, that an order thereupon made in the suit of foreclosure denying the appli- cation for a referee and staying all proceedings pending the deter- mination of the action of partition should be reversed. North Central Realty Co. v. Blackman (1911), 145 App. Div. 199, 129 N. Y. Supp. 1005. A stay of a sale in an action to foreclose a land contract will not be granted at the instance of creditors or the receiver of the owner of the equity of redemption, who since the advertisement of the sale has been adjudicated a bankrupt, solely to give the receiver or the creditors an extension of time in which to endeavor to raise funds to obviate the necessity of the sale, where the 168 FORECLOSURE. plaintiff, the owner of the legal title, claims that an extension will result in his own insolvency. Wayne Iron Ore Co. v. Ontario Mineral Co., Inc. (1917), 100 Mise. 187, 165 N. Y. Supp. 380. An injunction granted under section 604 of the Code of Civil Procedure in an action to foreclose a mortgage restraining the defendant mortgagor from selling his personal property in order that the plaintiff may reach it on an execution which might issue upon any judgment for deficiency, is unauthorized and on motion will be vacated. Broadfoot v. Miller (1919), 106 Misc, 455, 174 N. Y. Supp. 497. Subd. 7. No Other Action to be Brought. (Fiero, Spec. Act., 8rd Ed., pp. 713-719.) The object of sections 1627 and 1628 of the Code of Civil Pro- cedure is to prevent the unnecessary multiplicity of actions and to compel a plaintiff to get all the relief he can by way of a per- sonal judgment for deficiency in the one suit. Leighton v. Leigh- ton Lea Assn. (1909), 62 Misc. 73, 82, 114 N. Y. Supp. 918. Section 1628 of the Code of Civil Procedure confers no absolute right upon a mortgagor to maintain a separate suit upon the bond after foreclosure. The power of the court to grant such leave is discretionary, and it will be granted only when specific reasons are shown why the personal liability was not enforced in the suit of foreclosure. Darmstadt v. Manson (1911), 144 App. Div. 249, 128 N. Y. Supp. 992. Leave to sue the guarantors of a mortgage debt after fore- closure will not be granted where without other excuse than expediting the foreclosure one of them was not made a party, and the other, though made a party, was served with notice of no per- sonal claim. Morrison v. Slater (1908), 128 App. Div. 467, 112 N. Y. Supp. 855. The propriety of granting leave to bring an action to recover a portion of a mortgage debt while a prior suit of foreclosure is pending, or after final judgment therein, is to be determined upon equitable principles. Matter of Steiner (1914), 161 App. Div. 742,147 N. Y. Supp. 200. Good reasons must be shown why defendants in foreclosure should be called on to answer again in an action at law. Carlin v. Tnndtveit (1916), 175 App. Div. 940, 161 N. Y. Supp. 1120. FORECLOSURE. 169 After a sale on the foreclosure of a mortgage, an application for leave to bring an action upon the bond against a defendant who is not served with a summons and who did not appear must be made upon notice. Cooper Co. v. Naumburg (1912), 154 App. Div. 225, 138 N. Y. Supp. 1005. Plaintiff, in a suit to foreclose a mortgage, who entered a decree containing no provision for a deficiency judgment, so that the obligors on the bond secured by the mortgage were not called upon to appear at the sale and bid, in order that the lands might sell for an adequate price, should not, after the expiration of two years, be allowed to maintain a separate action upon the bond. Darmstadt v. Manson (1911), 144 App. Div. 249, 128 N. Y. Supp. 992. The plaintiff in a suit for the foreclosure of a mortgage who fails to ask for a deficiency judgment against one of the defendants who has guaranteed the payment of the debt, pursuant to an agree- ment that no recovery would be sought against such defendant on his guaranty until a judgment for deficiency had been entered against the mortgagor, is entitled, after entry of judgment against the mortgagor for a deficiency, to an order granting leave to sue the guarantor on the contract. Matter of Rothschild (1914), 160 App. Div. 530, 145 N. Y. Supp. 955. Section 1628 of the Code of Civil Procedure must be read in connection with section 1627 which authorizes a plaintiff in a foreclosure suit to join as a defendant all who are liable to the defendant for the payment of the mortgage debt and does not refer to an action supplemental to and in aid of a judgment of deficiency to reach the assets of the corporation mortgagor, which could not be reached by execution in the first action, and apply them to the payment of such judgment and does not prohibit the bringing of an action to enforce the liability of the stockholders of the corporation without leave of court. Leighton v. Leighton Lea Assn. (1909), 62 Mise. 73, 114 N. Y. Supp. 918. Subd. 8. Receiver, when Appointed, Powers and Duties. (Fiero, Spec. Act., 3rd Ed., pp. 719-730.) A provision in a recorded mortgage on real estate which en- titles the mortgagee to an appointment of a receiver of the rents and profits, without notice and without regard to the adequacy of 170 FORECLOSURE. the security in case of default by the mortgagor, is binding upon a subsequent lessee of the premises, as he took his lease with notice of said provision. Moreover, the tenant takes his lease subject to having the rents of his sub-tenants impounded by a receiver in case of a foreclosure. But such receivership clause does not entitle the mortgagee to the appointment of a receiver as a matter of right. Schwarz v. Alexander (1917), 178 App. Div. 641, 165 N. Y. Supp. 491. Where after a receiver of the rents and profits appointed in a suit to foreclose a second mortgage had collected considerable money, the holder of the first mortgage, without having the re- ceivership extended, foreclosed his mortgage and sold the prop- erty for a sum insufficient to satisfy the amount due thereon, he should not be allowed to intervene in the suit to foreclose the second mortgage. Kroehle v. Ravitch (1911), 148 App. Div. 54, 132 N. Y. Supp. 1056. Where before plaintiff, who in a foreclosure action had been appointed receiver of the rents and profits, had collected an amount sufficient to reimburse himself for expenditures in making repairs to the mortgaged premises, but for which they would have become uninhabitable and dangerous to the occupants, the receiver- ship is terminated by the discontinuance of the action by consent, the plaintiff therein is not liable for the amount of a deficiency found due to the receiver on the settlement of his accounts. C'ohen v. Feuerstein (1918), 80 Misc. 398, 141 N. Y. Supp. 267. A receiver of the rents and profits in foreclosure is not liable for any Federal income tax upon moneys received and paid out during the course of his receivership, and therefore, he is not in duty bound to make any return to the treasury department of the United States government. Lathers v. Hamlin (1918), 102 Mise. 563, 170 N. Y. Supp. 98. A clause in a mortgage authorizing the appointment of a re ceiver upon default does not dispense with notice of the applica- tion. Nor does a clause that upon default the mortgagee may enter the premises, take possession thereof and receive the rents and profits, dispense with the necessity of notice. A letter written by the attorney for the plaintiff in a suit for the foreclosure of a mortgage to another attorney is not equivalent to notice of an application for the appointment of a receiver, where the authority FORECLOSURE. 171 of the attorney to receive the notice is not established and the letter lacks the requisite precision. If an order for publication is made on account of the evasion or the absence of the defendant, the appointment of a receiver may be had without notice. Straus v. Minkowski (1918), 181 App. Div. 877, 169 N. Y. Supp. 442. Where a mortgagor conveyed the mortgaged lands under an agreement that the grantee would manage the property for a salary and a percentage of profits and reconvey on demand to the mort- gagor and the grantee, a corporation, being unsuccessful, turned ever all its capital stock to the mortgagee to whom it thereafter paid rents as received from the property so that the mortgagee is practically a mortgagee in possession, a receiver in a suit to foreclose should not be appointed on motion of the mortgagor where there is no proof that the property is improvidently man- aged or that the plaintiff mortgagee is irresponsible and the re- ceiver would have nothing to do except to collect the rents. Man- hattan Life Ins. Co. v. Hammerstein Opera Co. (1917), 180 App. Div. 69, 167 N. Y. Supp. 245. Apart from a special agreement or of circumstances affecting the rights and equities of the parties, a junior mortgagee may through a receiver obtain the rents and profits of mortgaged real property. A senior mortgagee desiring to obtain such rents to apply upon his mortgage should actually possess himself of them or of the right to them through some mutual arrangement there- for, or he should make application to the court to have the re celvership extended for his benefit. Each of the three mortgages held by the parties to this con- troversy provided for the appointment of a receiver of the mort- gaged premises on default by the mortgagor. The plaintiff herein, the owner of a fourth mortgage, applied for and obtained the appointment of a receiver in her behalf. The owner of the second and third mortgages did not seek to collect the rent either by voluntary payment with the consent of the mortgagor or through a receiver, but claims the rents in the hands of the plaintiff's receiver. The order appointing such receiver was never modified, or in any way extended for his benefit. Upon these facts the holder of the senior mortgages is not now entitled to appropriate the proceeds of the diligence of the junior mortgagee. Sv /Tivan v. Rossom (1918), 223 N. Y. 217, revg., 166 App. Div. 68. 172 FORECLOSURE. The appointment of a receiver in an action for the foreclosure of a mortgage is not in conflict with the prior appointment of a temporary administratrix by the Surrogate’s Court, which court authorized her to take possession of the mortgaged premises and to collect the rents therefrom as provided by section 2600 of the Code of Civil Procedure, especially where the mortgage expressly gives the mortgagee the right to the appointment of a receiver without regard to the adequacy of the security for the debt. Nor does the appointment of a receiver by the Supreme Court involve any conflict with the jurisdiction of the surrogate. Cohn v. Bart- lett (1918), 182 App. Div. 245, 169 N. Y. Supp. 604. Where a receiver in a foreclosure action recovered a judgment for rent, and the record on appeal contains no evidence to support a finding of actual attornment by the tenant to the plaintiff, the judgment will be reversed, with leave to appeal to the Appellate Division. Baerlein v. Winter (1918), 103 Misc. 506, 170 N. Y. Supp. 399. Subd. 9. Costs. (Fiero, Spec. Act., 8rd Ed., pp. 731-735.) The allowance of costs is wholly within the power of the Special Term when it enters final judgment, irrespective of whether or not the interlocutory judgment includes costs. Weyand v. Park Terrace Co. (1909), 185 App. Div. 821, 120 N. Y. Supp. 192, revd., 202 N. Y. 231, on other grounds. A defendant, holding another mortgage on the property which the plaintiff alleges is an inferior lien, who appears by attorney and answers, is entitled to taxable costs accruing prior to the service of an amended complaint admitting the priority of his mortgage. Welch v. Graham (1910), 124 N. Y. Supp. 945, affd., 148 App. Div. 900, 132 N. Y. Supp. 1150. The plaintiff in foreclosure by receiving money held by the referee applicable to the payment of costs awarded does not waive his right to object to the referee’s disbursements. Carter v. Builders’ Construction Co. (1909), 184 App. Div. 553, 119 N.Y. Supp. 670. A referee appointed to sell on foreclosure should not refuse to file a report showing his own disbursements merely because he has money applicable to the payment of costs awarded to the plaintiffs FORECLOSURE, 173 attorney, which the latter refuses to receive. On the filing of such report and notice to the plaintifi’s attorney he may question the disbursements charged by the referee against the purchase money. Carter v. Builders’ Construction Co. (1909), 134 App. Div. 553, 119 N. Y. Supp. 670. Additional allowance, when granted. Gottscho v. Burger (1916), 161 N. Y. Supp. 784; Moran v. Midville Realty Co. (1915), 162 N. Y. Supp. 117, afid., 176 App. Div. 807, 163 N. Y. Supp. 833. An additional allowance in a suit in equity to foreclose a mortgage is a matter for the court’s discretion. Moran v. Midville Realty Co. (1915), 162 N. Y. Supp. 117, affd., 176 App. Div. 807, 163 N. Y. Supp. 833. ARTICLE VII. REFERENCE TO COMPUTE AMOUNT DUE. (Fiero, Spec. Act., 3rd Ed., pp. 735-743.) Supp. 1. Order of reference. 2. Duties and report of referee. Subd. 1. Order of Reference. (Fiero, Spee. Act., 38rd Ed., pp. 735-739.) Rule 60 of the General Rules of Practice relates to the pro- cedure to be followed in case of the appointment of a referee to compute the amount due upon the bond and mortgage in an action of foreclosure. This rule does not purport to relate in any way to a trial by the court where issues arise upon the pleadings in the action. Redmond v. Hughes (1912), 151 App. Div. 99, 103, 135 N. Y. Supp. 843. Rule LX providing that if an infant defendant puts in a gen- eral answer in a mortgage foreclosure, otherwise undefended, the order of reference to compute must direct the referee to take proof of the facts and make an examination in regard to payments, is mandatory and where there has been a failure to comply with this rule a purchaser on the sale need not take title as it is not marketable, the rights of the infant not having been cut off. Smith v. Warringer (1903), 41 Misc. 94, 83 N. Y. Supp. 655. But it has been held that where defendants in a suit of foreclosure have been duly served by publication and do not appear, the title 174 FORECLOSURE. of a purchaser on the foreclosure sale is marketable although the order of reference did not direct the referee to take proof of the facts and circumstances stated in the complaint, pursuant to Rule LX of the General Rules of Practice, and although upon applica- tion for judgment such proof was not presented pursuant to section 1216 of the Code of Civil Procedure. Said defects were at most irregularities which in no way affected the jurisdiction of the court or its judgment. Especially is this so where the referee did in fact take proof as to the facts set forth in the complaint. Brody, etc., Co. v. Hochstadter (1913), 160 App. Div. 310, 144 N. Y. Supp. 631. An unauthorized order for interlocutory judgment on the plead- ings is not justified under Rule LX of the General Rules of Prac- tice, because it also orders a compulsory reference for that rule is designed for the protection of defendants who are infants or absentees and not to facilitate proceedings of the plaintiff. (od- win v. Liberty Nassau Bldg. Co. (1911), 144 App. Diy. 164, 128 N. Y. Supp. 791. Where it is conceded that plaintiff owns the mortgages in suit; that they are past due and that it has a right to foreclose and sell the premises, the motion for a referee to compute the amount due should be granted, and it is immaterial that the plaintiff is influenced by a sinister or unworthy motive in foreclosing. Vorth Central Realty Co. v. Blackman (1911), 145 App. Div. 199, 129 N. Y. Supp. 1005. Any claim that a referee was disqualified by reason of the fact that he had formerly been the clerk of one of the attorneys in the case is waived when the other counsel mentioned the fact to the referee and disclaimed any intention of questioning his integrity or objecting to his taking the evidence. Fleck v. Cohn (1909), 131 App. Div. 248, 115 N. Y. Supp. 652. Where, in a suit for the foreclosure of a mortgage in which two infant defendants appear by their guardian ad (item, the order of reference to compute the amount due did not contain a direction to the referee to take proof of the facts and cireum- stances set forth in the complaint, as required by Rule LX, but the referee did take such proof and file the evidence with his re- port, the same as if the order had conformed to the requirements of the rule, and the report was confirmed, and judgment of fore- FORECLOSURE. 175 closure and sale entered, and thereafter an order was made and entered appointing a referee to compute nunc pro tunc, and in- serting therein the direction required by Rule LX, title acquired under the foreclosure sale is marketable. Ames v. Danzilo (1913), 158 App. Div. 282, 148 N. Y. Supp. 75. Where, in an action to foreclose a mortgage, the defendants, there being no infants, incompetents or absentees, were all served within the jurisdiction, and three of them appeared, but none of them answered, and the plaintiff served a notice of motion on all the defendants who had appeared for judgment as demanded in the complaint, and none of them appeared, and the application for judgment was not opposed, whereupon the court appointed a referee to compute, the plaintiff, the referee having reported the amount due upon the mortgage, was entitled to judgment with- out further notice. Upon the refusal of the justice presiding to grant the judgment, the plaintiff should ask for an order denying his application, from which he may appeal, and he should not apply for a peremptory writ of mandamus directing entry of judgment by default. People ex rel. Rosenquest v. Donnelly (1915), 168 App. Div. 500, 153 N. Y. Supp. 997. Subd. 2. Duties and Report of Referee. (Fiero, Spec. Act., 3rd Ed., pp. 739-743.) The duty of a referee appointed to sell real property under a judgment in foreclosure is to sell the property, pay off existing liens and incumbrances and convey the property free and clear of all encumbrances to the purchaser. Equitable Life Assurance Soc. of U. 8. v. Toplitz (1910), 69 Mise. 457, 128 N. Y. Supp. 153. A referee appointed to sell property under a judgment in fore- closure should select the time of sale, the auctioneer and the means of advertising, and the exercise of his discretion should not be delegated to the plaintiff's attorney. Van Boskerck v. Hayward (1913), 81 Mise. 370, 142 N. Y. Supp. 412. The title to lands sold on foreclosure is not unmarketable merely because the referee took no proof of the heirship of the infants and absent defendants whose guardian made the usual answer in such action, if the order of reference contained the directions re- quired by Rule LX, and the referee took proof of the facts and 176 FORECLOSURE. circumstances stated in the complaint and examined the plaintiff’s agent under oath as to the mortgage, the payment thereon, the amount due, and where any evidence as to heirship would not have affected the judgment. Franklin v. Di Clemente (1908), 123 App. Div. 664, 108 N. Y. Supp. 123. The report of a referee appointed to sell the mortgaged property should not be set aside on the ground that the referee illegally allowed the purchaser on the sale to deduct from the purchase price the amount due on a prior mortgage, where the sale was made without objection pursuant to the terms of the judgment and notice. Kelly v. Wronkow (1908), 111 N. Y. Supp. 874. ARTICLE VIII. JUDGMENT. (Fiero, Spec. Act., 8rd Ed., pp. 743-767.) Supp. 1. Judgment, the character and extent of relief granted. 2. Effect of final judgment and conveyance. 3. Motion to vacate judgment and appeal. Subd. 1. Judgment, the Character and Extent of Relief Granted. (Fiero, Spec. Act., 38rd Ed., pp. 743-755.) Sufficiency of judgment. Weisendanger v. Westchester Trust Co. (1908), 58 Mise. 472, 109 N. Y. Supp. 622. Where a mortgage covers separate parcels of land, some of which are included in a prior mortgage, a judgment of foreclosure must order a sale of the parcels separately and direct that the prior mortgage be paid out of the proceeds of the sale of the parcels covered thereby, and the balance, if any, applied on the second mortgage. Citizens’ Permanent Savings & Loan Association v. Rampe (1909), 116 N. Y. Supp. 597, affd., 139 App. Div. 927, 123 N. Y. Supp. 1110. Where the owner of mortgaged premises appears in a suit of foreclosure and demands service of all papers except the com- plaint, he reserves the right to be heard on the form of the judg- ment to be entered. Silverstein v. Brown (1912), 153 App. Div. 677, 188 N. Y. Supp. 848. Where, subsequent to an action of foreclosure and at the date of an interlocutory decree for sale, a city acquired an easement FORECLOSURE. 177 in the property for the construction and maintenance of a sewer and made an award to the mortgagors, the decree should be amended so as to exempt the easement from the sale as under the circumstances it cannot be sold on foreclosure even though the lien of the mortgage attached to the award. Woolf v. Leicester Realty Co. (1909), 184 App. Div. 484, 119 N. Y. Supp. 288. Where in an action to foreclose a mortgage which provides that the principal sum shall become due after default in the payment of interest, it appears that on such default the mortgagee elected to declare the principal due, interest should be cast after the date of such election by way of damages for breach of the contract, and hence at the legal rate of six per cent, although the rate named in the obligation is five and a half per cent. Weyand v. Park Terrace Co. (1909), 185 App. Div. 821, 120 N. Y. Supp. 192, revd. on other grounds, 202 N. Y. 231. Where the mortgaged premises have been sold under a prior mortgage pending foreclosure of the junior mortgage, the plaintiff should proceed to enter judgment of foreclosure and sale, and to have the surplus in the hands of the chamberlain applied as far as it will go in reduction of her mortgage lien, and be relieved from the necessity of a sale by order because of the circumstances. Thereafter she may apply for a deficiency judgment. Lowe v. Weil (1909), 117 N. Y. Supp. 1025. In an action of foreclosure by a junior mortgagee, the court will not direct a disposition of rents assigned to a prior mortgagee by a prior assignment, where he is not a party to the proceeding. State Bank v. Cohen (1910), 124 N. Y. Supp. 433. Subd. 2. Effect of Final Judgment and Conveyance. (Fiero, Spec. Act., 3rd Ed., pp. 755-763.) A judgment of foreclosure in which the owners of the equity of redemption have not been served with process or do not volun- tarily appear, is absolutely without jurisdiction and as against such owners the purchaser at the sale under the judgment derives no title whatsoever. Herrman v. Cabinet Land Co. (1916), 217 N. Y. 526. Under section 1671 of the Code of Civil Procedure an incum- brance on land executed and delivered before, but not recorded until after, the filing of a lis pendens, is as completely cnt off by 12 178 FORECLOSURE. a judgment of foreclosure as if the holder had been made a party to the suit. People’s Trust Co. v. Tonkonogy (1911), 144 App. Div. 333, 128 N. Y. Supp. 1055. The words “ forever barred and foreclosed,” used in a judg- ment of foreclosure, mean shut out and excluded from all right, claim, title, and interest in the mortgaged premises. Hope v. Seaman (1909), 119 N. Y. Supp. 713. A sale on foreclosure carries title to all rights in the premises sold, which were held by persons bound by the judgment. People’s Trust Co. v. Tonkonogy (1911), 144 App. Div. 333, 128 N. Y. Supp. 1055. Purchaser on foreclosure takes no rights under promise sub- sequent to mortgage. Title Guarantee & Trust Co. v. New York Juvenile Asylum (1909), 133 App. Div. 529, 118 N. Y. Supp. 302. On a sale on foreclosure the estate of the defendants is not extinguished, but the estate of each is transmitted to the purchaser. Hope v. Shevill (1910), 187 App. Div. 86, 122 N. Y. Supp. 127, affd., 204 N. Y. 563. A mortgage foreclosed merges in the judgment. Hope v. Sea- man (1909), 119 N. Y. Supp. 713. Defendant’s appearance in a foreclosure action is equivalent to due personal service, and hence the judgment and sale cuts off and extinguishes any lien it has upon the premises. Johnson v. Putnam Foundry & Machine Co. (1915), 167 App. Div. 99, 152 N. Y. Supp. 792. A purchaser of lands at a foreclosure sale, subject to “ the liens of all valid taxes, assessments, water rates and sales thereunder,” who makes a settlement of the claim for taxes for a smaller amount than actually due, is not liable to the mortgagor or his successor in title for the amount saved in settlement of the taxes. Stemmler v. Alsdorf (1915), 167 App. Div. 663, 153 N. Y. Supp. 8. Although a junior mortgagee is made party defendant to an action to foreclose a prior mortgage covering only one-half of the property, its lien upon the remaining one-half is not cut off by reason of the fact that it did not protest against an erroneous judgment which directed the sale of the entire premises even if it had notice of the terms of sale. Mayer v. Burr (1909), 133 App. Div. 604, 118 N. Y. Supp. 203. FORECLOSURE. 179 A judgment of foreclosure in a suit brought by the assignee of the mortgage which expressly determines that the plaintiff’s ownership of the mortgage was absolute, and that the sum secured thereby is due to the plaintiff, creates an estoppel so long as it remains in force, and is final not only as to the matters actually determined, but as to all other matters which the parties might have litigated, and they cannot thereafter be litigated between said parties in another action. Archer v. Archer (1914), 164 App. Div. 81, 149 N. Y. Supp. 426. Where a conditional bill of sale of chattels affixed to real prop- erty has been filed as required by the Personal Property Law, a purchaser of the realty on foreclosure is chargeable with notice thereof, and hence the referee on the foreclosure sale should not allow him the amount unpaid on the fixtures, but should pay the same over to the proper depositary for the benefit of a junior mortgagee. Foreman v. Nordon Construction Co. No. 1 (1915), 167 App. Div. 712, 152 N. Y. Supp. 592. The rights of a tenant are not affected by the foreclosure of a prior mortgage, unless he was a party to the suit. Where the ref- eree’s deed on such foreclosure expressly conveyed the premises subject to the leasehold interest and the tenant never attorned to the purchaser, no privity of estate or of contract exists between the purchaser and the tenant, and the purchaser cannot maintain an action for rent under the lease. Wacht v. Hirskine (1908), 61 Misc. 96, 113 N. Y. Supp. 130. Where after the city of New York had become vested with the title to that portion of mortgaged premises which was within a street line the mortgage was foreclosed, the purchaser at the sale in foreclosure obtained no title to that part of the property which had been covered by the mortgage nor had he any claim or right to the award, the owner of the property at the time title vested in the city being entitled thereto. Matter of Jones (1916), 96 Mise. 32, 160 N. Y. Supp. 33, revd., 178 App. Div. 654, 165 N. Y. Supp. 896. All partners must be served with a summons in a suit of fore- closure of a mortgage in order that the purchaser may obtain a marketable title. Liebert v. Reiss (1916), 174 App. Div. 308, 160 N. Y. Supp. 535. 180 FORECLOSURE, When foreclosure bars subsequent action to recover portion of debt assigned by mortgagee. Lagrave v. Hellinger (1911), 144 App. Div. 397, 129 N. Y. Supp. 291, affd., 205 N. Y. 577. Subd. 3. Motion to Vacate Judgment and Appeal. (Fiero, Spec. Act., 3rd Ed., pp. 7638-766.) The court has power to modify directions inserted in the judg- ment commanding the parties to do particular things for the pur- pose of carrying the judgment into effect, which do not relate to the merits of the controversy. Columbia Knickerbocker Trust Co. v. Ithaca Street. Ry. Co. (1918), 141 N. Y. Supp. 249. A deeree of foreclosure will not be reversed on appeal merely because the referee has failed to note on the margin of requests to find the manner in which the requests have been disposed of, as required by section 1023 of the Code of Civil Procedure, where the Appellate Court accords to the party making the requests all rights which he would have had if the referee had complied with the section. Stickles v. Millar (1911), 143 App. Div. 763, 128 N. Y. Supp. 487. ARTICLE IX. SALE AND CONFIRMATION. (Fiero, Spee. Act., 3rd Ed., pp. 767-774.) See Rea Property, Provisions Retatine To, Arricies TX-XTI,. Rue 380 (last par.). References other than those of issues, ete. Rule 30 (last par.). References other than those of issues, etc. In references other than for the trial of the issues in an action, or for com- puting the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them; the report of the referee shall be filed with the testi- mony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding. At any time after the report is filed either party may bring on the action or proceeding at Special Term on notice to the parties interested therein. Amended 1910. (Fiero, Spec. Act., 8rd Ed., p. 771.) FORECLOSURE. 181 ARTICLE X. JUDGMENT FOR DEFICIENCY. (Fiero, Spee. Act., 8rd Ed., pp. 775-787.) The right to obtain a deficiency judgment in an action to fore- close a mortgage rests entirely on our statutory provisions. Be- fore the enactment of those statutes, a mortgagee to collect a deficiency was compelled to resort to an action at law after the sale under a decree in equity. This course may still be pursued, though leave of the court is necessary for the institution of the second action. Rutherford Realty Co. v. Cook (1910), 198 N. Y. 29, 33. Mortgaged premises constitute the primary fund for the pay- ment of the mortgage debt and only where the mortgagee has endeavored to collect the same out of the land can a just judgment for deficiency be entered. Purdy v. Wilkins (1916), 95 Mise. 706, 160 N. Y. Supp. 17. After the entry of an interlocutory judgment of foreclosure and sale the obligor upon the bond cannot contest an application for a judgment for a deficiency upon the ground that he never executed the bond or mortgage, for the interlocutory judgment is conclusive against him on that issue. Davies v. Freund (1912), 152 App. Div. 819, 187 N. Y. Supp. 735. A grantee who assumes a mortgage is not liable for a deficiency on foreclosure if his grantor was not personally liable for the mortgage debt. Jenkins v. Bishop (1909), 186 App. Div. 104, 120 N. Y. Supp. 825, affd., 207 N. Y. 697. Construction of agreement by which rent of mortgaged premises may be applied on deficiency. Rutherford Realty Co. v. Cook (1910), 198 N. Y. 29. A mortgage stated to be an existing obligation and which pro- vides that it shall apply to, bind or inure to the benefit of the heirs, successors, legal representatives and assigns of the respective parties thereto, is in legal effect a bond, and on foreclosure plain- tiff is entitled to judgment for a deficiency, if there be any. Katz v. Katz (1913), 80 Mise. 170, 140 N. Y. Supp. 971, affd., 159 App. Div. 921, 144 N. Y. Supp. 1122, affd., 217 N. Y. 651. Where the plaintiffs in a suit to foreclose a mortgage entered a decree containing no provision for a deficiency judgment and 182 FORECLOSURE. bought the property on the foreclosure sale, they are not entitled after the defendant's time to file exceptions to the decision and to appeal from the judgment has expired, to amend said judgment nunc pro tunc by inserting a provision making the defendant liable for any deficiency. Baehr v. Smith (1915), 169 App. Div. 574, 155 N. Y. Supp. 453. The interest of an heir at law of a deceased mortgagor in the mortgaged property is subject to be wiped out by a judgment in foreclosure and, in case of a deficiency, judgment may be entered against the administratrix of the deceased mortgagor, she having been made a party to the foreclosure action, and collected out of property coming into her hands in due course of administration. Buckley v. Beaver (1917), 99 Mise. 643, 166 N. Y. Supp. 131. A personal judgment may be entered against the obligor on a bond under an interlocutory judgment foreclosing a junior mort- gage, although no sale has been had pursuant to the judgment owing to the fact that after the entry thereof the property was sold on the foreclosure of a prior mortgage which sale resulted in a deficiency. Davies v. Freund (1912), 152 App. Div. 819, 137 N. Y. Supp. 735. Personal liability of purchaser of mortgaged premises for in- terest paid on prior mortgage. Silverstein v. Brown (1912), 153 App. Div. 677, 188 N. Y. Supp. 848. In an action to foreclose a mortgage a mortgagor who has sub- sequently transferred the property is not relieved from liability for a deficiency judgment where there is no agreement in writing between his grantee and the mortgagee extending the payment of the mortgage or changing the rate of interest. Rafel v. Maurer (1917), 101 Mise. 621, 167 N. Y. Supp. 941. A mortgagor defending an action of foreclosure on the ground that he is not lable for a deficiency by agreeing that the rents from the premises be deposited to the joint account of the parties, “to be held to abide the event of this action,” the taxes, insurance premiums, ete., to be paid from the sum deposited, merely agrees that the balance of the deposit shall be applied in satisfaction of the mortgage only in case it is determined that he is liable for a deficiency. After a decision that he is not so liable, the mortgagee has no right to have the balance of the deposit applied to cover FORECLOSURE. 183 a deficiency. Rutherford Realty Co. v. Cook (1909), 130 App. Div. 76, 114 N. Y. Supp. 274. An owner of the equity of redemption in property subject to a first mortgage and several other mortgages, through fraudulent representations to the holders of the inferior mortgages, obtained releases of an award against the city of New York for the land covered by the mortgages, and upon receiving the releases made payments upon the mortgages and drew the award subject to other assessments and to an attorney’s lien which he paid. Held, that in determining the amount of the owner’s liability on a deficiency judgment, the first mortgage and also the sums paid to the holders of the subsequent mortgages should be deducted from the net. amount of the award. The owner is not entitled to an allowance. for legal expenses incurred in a foreclosure proceeding pursuant, to the contract entered into in reliance upon his fraudulent: representations. Gilmore v. Hirschman (1916), 171 App. Div. 594,157 N. Y. Supp. 727. Where a deed absolute in form is given to secure a loan and is foreclosed as a mortgage, a deficiency judgment may be given. Dickey v. Goertner (1914), 146 N. Y. Supp. 284. ARTICLE XI. PROCEEDINGS WHEN MORTGAGEE’S DEBT NOT ALL DUE. (Fiero, Spec. Act., 3rd Ed., pp. 787-791.) A plaintiff, in a suit for the foreclosure of a mortgage, who stipulates before answer to discontinue if the defendant pay all accrued interest and taxable costs before a certain date, but re- serves the right to proceed without notice upon failure of the de- fendant to pay said interests and costs, may proceed with the suit where the defendant has merely paid the interest. It seems that such a stipulation is without consideration and invalid; but whether valid or invalid, its force and effect can only be deter- mined by answer and a trial of the issues. Burkard v. Stephen Bldg., etc., Co. (1913), 160 App. Div. 50, 144 N. Y. Supp. 775. 184 FORECLOSURE. ARTICLE XII. SURPLUS PROCEEDINGS. (Fiero Spec. Act., 8rd Ed., pp. 791-818.) ‘Supp. 1. Rights of parties to surplus. Cope Civ. Pro., § 1633. Disposition of surplus; duties of officer making sale. 2. Method of distributing surplus. Rule 64. -8. Costs and appeal from order in surplus proceeding. Subd. 1. Rights of Parties to Surplus. (Fiero, Spec. Act., 8rd Ed., pp. 791-805.) Code Civ. Pro., § 1633. Disposition of surplus; duties of officer making sale. If there is any surplus of the proceeds of the sale, after paying the expenses ‘of the sale, and satisfying the mortgage debt and the costs of the action, it tmust be paid into court, for the use of the person or persons entitled thereto. If any part of the surplus remains in court for the period of three months, ithe court must, if no application has been made therefor, and may if an ‘application therefor is pending, direct it to be invested at interest, for the ‘benefit of the person or persons entitled thereto, to be paid upon the direction wf the court. Within thirty days after completing the sale, and executing the proper conveyance to the purchaser, unless such time be extended by an order of the court entered in the office of the clerk within said thirty days, the officer making the sale must file with the clerk his report under oath of the disposition of the proceeds of the sale, accompanied by the vouchers of the persons to whom payments were ordered to be made. Where real property, or an interest in real property, liable to be disposed of as prescribed in article third of title four of chapter eighteen of this act, is sold in an action or special proceeding, or otherwise, to satisfy a mortgage or other lien thereupon, which accrued during the decedent’s lifetime, the ‘surplus money must be paid into the Surrogate’s Court having jurisdiction to issue letters testamentary or of administration upon the estate of the decedent, in the following cases: 1. Where eighteen months have not elapsed since the date when letters ‘testamentary or of administration were first issued. 2. Where a proceeding for a judicial settlement of the accounts of such ‘executor or administrator has been commenced within eighteen months from the date of the issue of such letters and is still pending. 3. Where no such letters have been issued and two years have not elapsed since the death of the decedent. Money paid into the Surrogate’s Court, as herein provided, may be paid out to the executor or administrator of the decedent, as directed by an order of the Surrogate’s Court, to be accounted for by him upon the judicial settlement of his accounts; or, in a special proceeding brought for that pur- pose in the Surrogate’s Court, an order may be entered directing distribution to the persons entitled thereto, in case eighteen months have elapsed since letters testamentary or of administration were first issued upon the estate of FORECLOSURE. 185 the decedent, or, in case no such letters have been issued, and two years have elapsed since the death of the decedent. Amended by L. 1908, ch. 294; L. 1915, ch. 643. If there is a surplus, it must be paid into court and the question of who is entitled to it becomes the subject of a subsequent special proceeding in which all parties to the action and all other persons having liens are entitled to be heard. North River Savings Bank v. Buckley (1911), 180 N. Y. Supp. 787. A judgment creditor, whose lien on real estate has not been lost by the expiration of ten years from the time of docketing his judgment at the time such real estate is sold upon the foreclosure of a prior mortgage, is entitled to share in the surplus moneys, although the ten years expire before the proceeding to distribute the surplus is begun. Yerry v. Fuller (1908), 60 Mise. 562, 112 N.Y. Supp. 450. A guarantor of a first mortgage by paying interest on the mort- gage debt does not acquire a preference to the extent of said pay- ment in a surplus arising on foreclosure as against the holder of a second mortgage. North Side Bank of Brooklyn v. Queens Home Realty & Constr. Co, (1914), 162 App. Div. 156, 147 N. Y. Supp. 243, affd., 212 N. Y. 556. A judgment in favor of a wife against her husband for a divorce and alimony, payable thereafter in monthly installments, is prior to that of money judgments subsequently recovered and docketed ; and it is entitled to priority of payment out of surplus moneys arising from the foreclosure of a mortgage on the real property of the judgment debtor. Buffalo Savings Bank v. Hunt (1909), 64 Mise. 643, 118 N. Y. Supp. 1021. In a proceeding to distribute surplus moneys arising upon a mortgage foreclosure, the widow of a mortgagor who continued in the possession of the mortgaged premises during the period between the expiration of her quarantine and the delivery of the referee’s deed is chargeable with only two-thirds of the value of such use and occupation, although she could acquire no estate until her dower had been assigned to her. Shueler v. Levy (1911), 73 Mise. 25, 130 N. Y. Supp. 600. After a sale on foreclosure and payment of all sums due the mortgagee a surplus consisting of rents collected by a receiver appointed for that purpose should be paid to a junior mortgagee rather than to the owner of the equity of redemption. This is 186 FORECLOSURE. true, although the junior mortgagee did not extend the receiver- ship for the benefit of her mortgage. Vogel v. Nachemson (1910), 137 App. Div. 200, 121 N. Y. Supp. 927, affd., 199 N. Y. 535. The claimant asserted that she was entitled to inchoate dower in one-half of the surplus, but it appeared that her husband had only contributed one-sixth of the purchase price of the lands under an agreement with his brother, a cotenant, that he might subse- quently repay sufficient money to make him a half owner, his interest otherwise to remain one-sixth. Evidence, held, insufficient to justfy the reversal of an order based on a finding that the claimant’s husband had only contributed one-sixth. Fleck v. Cohn (1909), 131 App. Div. 248, 115 N. Y. Supp. 652.. It appeared that the owner of the property before his death conveyed to his housekeeper in order to protect it from judgment creditors, whereupon she made a will leaving the property to a person whom the grantor had appointed as his executor. After the death of the grantor, the executor told the grantee that the con- veyance was made solely to protect the property and induced her to deed it to him individually rather than as executor of the grantor in pursuance of the original plan to protect the property from creditors. Held, that as the executor by taking the con- vey.ance in his individual name was seeking te carry out the orig- inal fraud of his testator, a court of equity would not award him the surplus left after a foreclosure of a mortgage on the lands, and that the testator’s grantee was entitled thereto. (reason v. Holcomb (1909), 131 App. Div. 868, 116 N. Y. Supp. 336, affd., 196 N. Y. 571. When the owner of lands under course of improvement executes a trust mortgage for the benefit of creditors, persons filing me chanics’ liens after the execution of the mortgage for material furnished before its execution who do not elect to take under the mortgage are entitled to a preference in the surplus on foreclosure. American Mortgage Co. v. Merrick Construction Co. (1907), 120 App. Diy. 150, 104 N. Y. Supp. 900, affd., 190 N. Y. 526, Right to surplus under agreement. JV'elleman v. Rohrig (1908), 127 App. Div. 692, 111 N. Y. Supp. 736, affd., 193 N. Y. 439. The Surrogate’s Court has power to entertain a creditor’s peti- tion for the distribution of surplus money, arising on the fore- closure of a mortgage, filed after the expiration of three years FORECLOSURE. 187 from the time of the granting of letters of administration, although the statute requires that the petition for the disposition of the real property of a decedent for the payment of debts and funeral expenses must be made within that period. Matter of Bernstein (1908), 58 Mise. 115, 110 N. Y. Supp. 473. Subd. 2. Method of Distributing Surplus. Rule 64. (Fiero, Spec. Act., 8rd Ed., pp. 805-817.) Practice of providing for the distribution of surplus moneys by amendments to the judgment in foreclosure after the sale, disapproved. Kempf v. Biers (1916), 176 App. Div. 269, 162 N. Y. Supp. 780. So long as surplus moneys remain under the control of the court it has power over the entire proceeding which it will not hesitate to exercise in order to enforce the legal rights of the parties. Mutual Life Ins. Co. v. Cockerill (1912), 150 App. Div. 411, 134 N. Y. Supp. 1109. Surplus money proceedings, construction of judgment. King v. Doerr (1911), 145 App. Div. 177, 129 N. Y. Supp. 986, affd., 2038 N. Y. 559. Since by the express terms of section 1448 of the Code of Civil Procedure, a redemption from an execution sale renders the sale null and void, the effect of such redemption is to revive or con- tinue the lien of the judgment on which the sale was made to the extent of the amount unpaid, and this lien attaches to the surplus fund arising from the foreclosure of a prior mortgage. Aempf v. Biers (1916), 176 App. Div. 269, 162 N. Y. Supp. 780. Subd. 3. Costs and Appeal from Order in Surplus Proceedings. (Fiero, Spec. Act., 3rd Ed., pp. 817-818.) In a proceeding for the distribution of surplus moneys arising from a sale upon the foreclosure of a mortgage the court cannot grant an extra allowance of costs. Syracuse Savings Bank v. Stokes (1911), 71 Mise. 508, 180 N. Y. Supp. 596. FORECLOSURE, MECHANIC’S LIENS. See Mrecuantic’s Liens. FORECLOSURE OF LIENS ON CHATTELS. See CuattTets, ForecLosure or Liens on. JOINT DEBTORS, ACTIONS AND RIGHTS OF ACTION BY AND BETWEEN. (Fiero, Spec. Act., 8rd Ed., pp. 836-854.) Art. I, Judgment and execution against defendants jointly indebted when all are not served. III. Composition by one of joint debtors. V. Actions against and between partners. ARTICLE I. JUDGMENT AND EXECUTION AGAINST DEFENDANTS JOINTLY INDEBTED, WHEN ALL ARE NOT SERVED. (Fiero, Spec. Act., 3rd Ed., pp. 837-841.) Where the complaint is against the defendants, who are copart- ners, jointly, and not severally, judgment must be taken against all the defendants, although but one is served. The fact that the partner who is served had assumed and agreed to pay the partner- ship liabilities is of no avail. Brandagee v. Cleary (1915), 152 N. Y. Supp. 628. All partners must be served with a summons in a suit of fore- closure of a mortgage in order that the purchaser may obtain a marketable title. JLeebert v. Reiss (1916), 174 App. Div. 308, 160 N. Y. Supp. 535. All parties jointly liable on the same instrument must be joined in an action thereon, unless some of them are bankrupt, dead or without the jurisdiction of the court. Hence, a complaint in an action upon a contract of guaranty signed by the defendant and others in which it is not alleged that the others are within one of the exceptions to the general rule, is demurrable for a defect of parties defendant. Third National Bank of St. Louis v. Graham (1916), 174 App. Div. 503, 161 N. Y. Supp. 159. Where two defendants are sued upon a note as individuals. and only one is served with process, and the case is tried upon the theory that the answering defendant was individually liable on the note, and at the close of the plaintiffs case he had proven a copart- nership liability only, and at the close of the entire case the part- nership of the defendants was clearly established, the only judg- 188 JOINT DEBTORS, ACTIONS AND RIGHTS, ETC. 189 ment that could have been rendered for the plaintitt, if his version of the contested issues was to prevail, was one against both defend- ants. Where a joint liability is alleged and proved, the judgment, under section 1932 of the Code of Civil Procedure, must be taken against all the defendants although but one is served. Abromovitz v. Markowitz (1908), 58 Mise. 231, 108 N. Y. Supp. 1044. Where two or more are sued as joint debtors and plaintiff fails to establish a joint liability against all, judgment may be had against one if only one is liable. Lapinsky v. Colish (1908), 61 Mise. 319, 820, 113 N. Y. Supp. 733. Where an allegation of the sale and delivery of the goods to defendants was put in issue by the answer of the individual de- fendant but admitted by the answer of the corporation defendant, and the evidence on the trial, if believed by the jury, would justify a finding that defendants were jointly Hable, an instruction to the jury that they must find only one of the defendants liable is not only erroneous but prejudicial to the corporation defendant and requires that a judgment against it be reversed. Walker Co. y. Roth (1913), 79 Mise. 618, 140 N. Y. Supp. 516. A judgment against one of several joint debtors in an action against him alone is a bar to an action against his cojoint debtors. Utica City National Bank v. Penwarden (1917), 180 App. Div. 448, 167 N. Y. Supp. 680. ARTICLE ITI. COMPOSITION BY ONE OF JOINT DEBTORS. (Fiero, Spec. Act., 3rd Ed., pp. 846-851.) DEBTOR AND CREDITOR L., § 230. Compositions by joint debtors. § 231. Right of action against joint debtor where there has been a composition. § 232. Defenses by a joint debtor who has not been compounded. § 233. Action by joint debtor against compounding debtor. Cope Crv. Pro., § 1943. Satisfying judgment. Debtor and Creditor L., § 230. Compositions by joint debtors. A joint debtor may make a separate composition with his creditor. Such a composition discharges the debtor making it; and him only. The creditor must execute to the compounding debtor a release of the indebtedness or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt, until the partnership has been 190 JOINT DEBTORS, ACTIONS AND RIGHTS dissolved by consent or otherwise. In that case the instrument must release or exonerate him, from all liability incurred by reason of his connection with the partnership. Formerly Code Civ. Pro., § 1942. (L. 1880, ch. 178.) (B., C. & G. Consol. L., 2nd Ed., p. 1683.) Debtor and Creditor L., § 231. Right of action against joint debtor where there has been a composition. An instrument making a composition with a creditor does not impair the creditor’s right of action against any other joint debtor, or his right to take any proceeding against the latter; unless an intent to release or exonerate him, appears affirmatively upon the face thereof. Formerly Code Civ. Pro., § 1942. (L. 1880, ch. 178.) (B., C. & G. Consol. L., 2nd Ed., p. 1686.) Debtor and Creditor L., § 232. Defenses by joint debtor who has not com- pounded. Where a joint debtor including a partner has compounded, a joint debtor who has not compounded, may make any defense or counterclaim, or have any other relief, as against the creditor, to which he would have been entitled, if the composition had not been made. Formerly Code Civ. Pro., § 1944. (L. 1880, ch. 178.) (B., C. & G. Consol. L., 2nd Ed., p. 1686.) Debtor and Creditor L., § 233. Action by joint debtor against compounding debtor. A joint debtor, including a partner, who has not compounded may require the compounding debtor to contribute his ratable proportion of the joint debt, or of the partnership debts, as the case may be, as if the latter had not been discharged. Formerly Code Civ. Pro., § 1944. (L. 1880, ch. 178.) (B., C. & G. Consol. L., 2nd Ed., p. 1687.) Code Civ. Pro., § 1943. Satisfying judgment. An instrument specified in section two hundred and thirty of the Debtor and Creditor Law is deemed a satisfaction piece, for the purpose of dis- charging, as prescribed in section twelve hundred and sixty of this act, the docket of a judgment, recovered. upon an indebtedness released or discharged thereby, as far as the judgment affects the compounding debtor. Where the docket of a judgment is discharged thereupon, a special entry must be made upon the docket, to the effect, that the judgment is satisfied, as to the com- pounding debtor only. Amended by L. 1909, ch. 310. A release, containing no reservation, operates to discharge all the joint tort feasors; but, where the instrument expressly reserves the right to pursue the others, it is not technically a release, but a covenant not to sue, and they are not discharged. Walsh v. N.Y. C.& H.R. R. R. Co. (1912), 204 N. Y. 58, affg., 140 App. Div. 1, 124 N. Y. Supp. 312. OF ACTION BY AND BETWEEN. 191 A release under seal of certain defendants from liability under a judgment for fraud and deceit, expressly reserving the plaintiff’s rights against the other defendants, does not discharge the latter. A release with such a reservation will be construed as a covenant not to further pursue the party who has been released. It seems, that upon the rendition of the judgment defendant’s obligation to plaintiff was transferred technically into a contract liability to which sections 230 and 233 of the Debtor and Creditor Law apply. Mecum v. Becker (1914), 164 App. Div. 852, 149 N. Y. Supp. 974, affd., 215 N. Y. 691. Where the indorsers of a promissory note before it became due entered into a composition agreement with their creditors, and the bank holding the note, with knowledge of the composition, re- ceived, retained and receipted for checks in part payment from the committee of the creditors, from which it was only entitled to share in assets upon becoming bound by the composition agree- ment, the indorsers may, under section 230 of the Debtor and Creditor Law, compel the bank to release them from liability on the note, as by sharing in the assets it became subject to the pro- visions of the statue. Matter of Samra (1915), 169 App. Div. 604, 155 N. Y. Supp. 411. Where thirteen persons gave a joint and several promissory note in payment for a horse and at the time of the delivery of the note one of the makers made a payment equal to his share of the note which payment was indorsed generally upon the note but a receipt was given stating that the amount received was in full payment of one share in the horse it was held that there was no release of the other joint makers. Hillas v. Fuller (1913), 143 N. Y. Supp. 15. ARTICLE V. ACTIONS BETWEEN AND AGAINST PARTIES. (Fiero, Spec. Act., 3rd Ed., pp. 852-854.) Where, in an action upon a promissory note made by the defend- ants as copartners and in their firm name, it appears from the complaint that the defendants made the note payable to their own order and then indorsed the same and delivered it to the plaintiff for value, a judgment in a prior action by the plaintiff against one 192 JOINT DEBTORS, ACTIONS AND RIGHTS, ETC. of the defendants, founded upon the same note, is a bar. Utica City National Bank v. Penwarden (1917), 180 App. Div. 448, 167 N. Y. Supp. 680. JOINT TENANTS, ACTION BY. See EsEcTMENT, JUDGMENT FOR AND SALE OF REAL ESTATE. See Reat Property, Provisions Reiatine To. JUDGMENT, WHEN ASSIGNABLE. See ASSIGNMENT AND ASSIGNABILITY oF DEMANDS. JUDGMENT, ACTION UPON. See Miscetuaneous Actions anp Riguts oF ACTION, JUDGMENT CREDITOR’S ACTION. (Fiero, Spec. Act., 3rd Ed., pp. 855-975.) Art. I. When action can be maintained. II. Fraudulent conveyances and transfers. IV. Pleadings. V. Matters of practice. VI. Evidence. VIII, Judgment, its form and effect. ARTICLE I. WHEN ACTION CAN BE MAINTAINED. (Fiero, Spec. Act., 3rd Ed., pp. 857-887.) Supp. 1. Nature and scope of actions. 2. Action under the Code. 3. Action in aid of execution. 4, Action under equity powers of the court. 5. Action in aid of attachment. 6. Action by assignees, receivers, etc. Reat Prop. L., § 268. Disaffirmance of fraudulent act by executor and others. PeRSoNAL Prop, L., § 19. Disaffrmance of fraudulent act by executor and others. Subd. 1. Nature and Scope of Action. (Fiero, Spec. Act., 3rd Ed., pp. 857-862.) The scope of an action by judgment creditor for the discovery of property belonging to the judgment debtor seems not to be limited to personal property, and property not specifically set forth in the complaint may be recovered. Koellhoffer v. Peterson (1913), 82 Mise. 180, 143 N. Y. Supp. 353. A judgment creditor’s right of action to set aside fraudulent conveyances of the judgment debtor is not derived from or through the judgment debtor, but is a remedy given to a judgment creditor or his assignee after all legal remedies to enforce his lien have been exhausted; and the power of a court of equity to take juris- diction of such an action is not limited to the particular creditor’s action specified in sections 1871 to 1879 of the Code of Civil Pro- 1938 194 JUDGMENT CREDITOR’S ACTION. cedure, nor to those in which a question of fraud is involved. Hubbard v. United Wireless Telegraph Co. (1909), 62 Mise. 538, 115 N. Y. Supp. 1016. Subd. 2. Action under the Code. (Fiero, Spec. Act., 3rd Ed., pp. 862-873.) Where a will creates a trust in personal property during the life of testator’s wife, and directs the trustees upon the wife’s death to divide the property equally and pay it to his son and daughter if they are then living, there is a gift to the son of a contingent future interest, which is “ property ”’ within the mean- ing of section 1871 of the Code of Civil Procedure, and may be reached by a judgment creditor of the son through a suit in equity. National Park Bank of New York v. Billings (1911), 144 App. Div. 536, 129 N. Y. Supp. 846, affd., 203 N. Y. 556. It is the general rule that a creditor’s bill cannot be maintained until an execution has been issued and returned unsatisfied. And it has become the settled rule in this State not to dispense with these preliminaries, although it may be made to appear by evidence that no benefit could result to the creditors from them. Jewett v. Maytham (1908), 59 Mise. 56, 59, 109 N. Y. Supp. 1000. The Statute of Limitations does not run against a cause of action in the nature of a creditor’s bill under section 1871 of the Code of Civil Procedure until ten years after execution against the property of the judgment debtor has been returned unsatisfied. Bergmann v. Lord (1909), 194 N. Y. 70. Where a debtor against whom a judgment has been entered in one county resides in a foreign country and has no office in this State for the regular transaction of business in person the judg- ment creditor by filing a transcript of the judgment in another ‘county and by issuing execution thereon, which is returned un- satisfied, is not entitled to maintain a judgment creditor’s actiow in the latter county. Demuth v. Kemp (1913), 159 App. Div. 422,144 N. Y. Supp. 690, affd., 216 N. Y. 757. The plaintiff in a judgment creditor’s action is not excused from showing that execution was issued as required by section 1872 of the Code of Civil Procedure merely because he is a receiver appointed in supplementary proceedings. Pendleton v. Friedman (1909), 185 App. Div. 420, 119 N. Y. Supp. 994. JUDGMENT CREDITOR’S ACTION. 195 Subd. 8. Action in Aid of Execution. (Fiero, Spec. Act., 3rd Ed., pp. 873-875.) In an action in aid of execution to reach a lease alleged to have been fraudulently transferred by the defendant debtor to the de- fendant assignee, brought after the return of an execution unsatis- fied, it appeared that the assignment was made five days before plaintiff’s action against the assignor appeared upon the day calendar for trial, and was recorded on the day after judgment was entered, and recited that it was in consideration of one dollar. Evidence examined, and held, not only insufficient to sustain the burden of proof resting upon the defendant assignee of showing its good faith in the receipt of the lease, but to indicate the bad faith of the defendant, and that, therefore, a judgment dismissing the complaint should be reversed and a new trial granted. Cana- day v. Arch Amusement Co., Inc. (1917), 179 App. Div. 842, 167 N. Y. Supp. 224. Subd. 4. Action under Equity Powers of the Court. (Fiero, Spec. Act., 3rd Ed., pp. 875-877.) Creditors seeking the aid of a court of equity to reach equitable assets of their debtor in satisfaction of their claims, must first exhaust their legal remedies, according to the laws of this State, by the recovery of a judgment in one of its courts and the return of execution thereon unsatisfied, unless there are facts constituting a sufficient excuse for the failure so to do, Which facts must be set forth in the complaint. Trotter v. Lisman (1910), 199 N. Y. 497. Where in a suit to set aside transfers of property upon the eround that they were made to hinder and delay creditors, it ap- pears that the action is not brought in good faith, that the alleged fraudulent grantor is the real party in interest seeking to set aside the transfers made to his wife and children and devoted by them to the payment of his creditors, he now being estranged from them, and that the transfer in no way injured the interests of his creditors, the complaint should be dismissed. Lynch v. Jones (1917), 179 App. Div. 613, 166 N. Y. Supp. 1047. As a rule an action will not lie against a foreign executor, but the courts of this State are not wholly without power to protect 196 JUDGMENT CREDITOR’S ACTION. a resident creditor under special circumstances. In an action in equity where it is necessary to prevent the failure of justice, jurisdiction will be assumed at least so far as the relief to be secured relates to property within the jurisdiction of the court. The form and detail of the judgment in such case is in the discre- tion of the court at Special Term. Bergmann v. Lord (1909), 194 N. Y. 70. Where a debtor has, with fraudulent intent, conveyed his prop- erty to a fraudulent transferee, thus preventing a creditor from collecting his debt by ordinary legal methods and the fraudulent grantee has further transferred the property, he may be compelled in equity to account to a creditor for the proceeds of such property. Holland v. Grote (1908), 193 N. Y. 262, modfg., 125 App. Div. 413, 109 N. Y. Supp. 787. A judgment can be collected by ordinary legal process during the ten years it continues to be a lien on real estate, and the aid of a court of equity cannot be invoked by a judgment creditor during that period, no matter how fraudulent the intent of the grantor in transferring the real property subject to the lien. A creditor may, however, after the expiration of the lien but before the statute has run against the judgment, seek the aid of equity to remove a fraudulent conveyance which is a barrier to the collec- tion of the judgment, when he has failed to enforce it by execution while it remained a lien, because of ignorance of the facts or for other sufficient reasons. Holland v. Grote (1908), 193 N. Y. 262, modfg., 125 App. Div. 413, 109 N. Y. Supp. 787. Where a judgment debtor by the death of his father became seized of individual shares in several pieces of real property his judgment creditor cannot maintain an action the purpose of which is to procure satisfaction of his judgment from the personal assets of the decedent’s estate which is in course of administration, as plaintiff has an adequate remedy at law in an execution sale of the judgment debtor’s real property. Marsullo v. Rosendorf (1915), 89 Mise. 559, 152 N. Y. Supp. 61. A judgment creditor, on discovering that the only property owned by his debtor is real estate situated in another State, cannot maintain a suit in equity in this State for the appointment of a receiver and a decree directing the debtor to convey to the receiver so that he may apply the proceeds in satisfaction of the judgment, JUDGMENT CREDITOR’S ACTION. 197 unless he shows facts calling for the interposition of equity. The creditor must pursue the legal remedy afforded by the laws of the other State. Even if the lands of a debtor are situated in this State the judgment creditor cannot sue in equity to subject the same to the lien of his judgment, but must proceed by execution. Heyl v. Taylor (1910), 137 App. Div. 641, 122 N. Y. Supp. 279. A wife in order to enforce an order for the payment of alimony may maintain a creditor’s action against the defendant husband and those to whom he has fraudulently transferred prop- erty without showing that an execution against the property of the husband has been returned unsatisfied. Ludlam v. Bloodgood (1913), 3 Bradb. 569, affd., 163 App. Div. 863, 146 N. Y. Supp. 1098. Subd. 5. Action in Aid of Attachment. (Fiero, Spec. Act., 8rd Ed., pp. 877-878.) The general rule is, that until after the recovery of a judgment and the issuing of an execution thereon, no equitable action can be maintained by an attaching creditor to set aside a fraudulent transfer. But there are some exceptions to this rule. Wart v. Clarke & Co. (1909), 194 N. Y. 403. An application for leave to bring an action in aid of an attach- ment made under sections 677 and 678 of the Code of Civil Pro- cedure should not be denied because notice was not given to the non-resident defendant, if there are no special circumstances which rendered such notice proper. Hall v. Tevis (1910), 139 App. Div. 636, 124 N. Y. Supp. 48. Where, upon the application of a creditor of a foreign corpo- ration, the receiver who had been discharged was reinstated and directed to enforce the liability of stockholders on their subscrip- tions to stock, the assignee of said creditor was not estopped from attaching the liability of defendant’s testator on his stock subscrip- tion and from maintaining an action under this section and sec- tion 678 in aid of the attachment. McNelus v. Stillman (1916), 172 App. Div. 307, 158 N. Y. Supp. 428. Subd. 6. Action by Assignees, Receivers, Etc. (Fiero, Spec. Act., 3rd Ed., pp. 878-886.) Real Prop. L., § 268. Disaffirmance of fraudulent act by executor and others. An executor, administrator, receiver, assignee or other trustee, may, for the benefit of creditors, or of others interested in real property held in 198 JUDGMENT CREDITOR’S ACTION. trust, disaffirm, treat as void and resist any act done or transfer or agree- ment made in fraud of the rights of any creditor, including himself, interested in such estate or property; and a person who fraudulently receives, takes, or in any manner interferes with the real property of a deceased person, or an insolvent corporation, association, partnership, or individual, is liable to such executor, administrator, receiver or other trustee for the same, or the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim or demand exceed- ing one hundred dollars against such deceased, may, for the benefit of creditors or others interested in the real property of such deceased, disaffirm, treat as void, and resist any act done or conveyance, transfer or agreement made by such deceased in fraud of the rights of any creditor, including him- self, and may maintain an action to set aside such act, conveyance, transfer or agreement, without having first obtained a judgment on such claim or demand; but the same, if disputed, may be established on the trial. The judgment in such action may provide for the sale of the premises or property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper Surrogate’s Court to be administered according to law. Formerly Real Prop. L. (L. 1896, ch. 547), § 232. (B., C. & G. Consol L., znd Ed., p. 7487.) Personal Prop. L., § 19. Disaffirmance of fraudulent acts by executors and others. An executor, administrator, receiver, assignee or trustee, may, for the benefit of creditors or others interested in personal property, held in trust, disaffirm, treat as void and resist any act done, or transfer or agreement made in fraud of the rights of any creditor, including himself, interested in such estate, or property, and a person who fraudulently receives, takes or in any manner interferes with the personal property of a deceased person, or an insolvent corporation, association, partnership or individual is liable to such executor, administrator, receiver or trustee for the same or the value thereof, and for all damages caused by such act to the trust estate. A creditor of a deceased insolvent debtor, having a claim against the estate of such debtor, exceeding in amount the sum of one hundred dollars, may, with- out obtaining a judgment on such claim, in like manner, for the benefit of himself and other creditors interested in said estate, disaffirm, treat as void and resist any act done or conveyance, transfer or agreement made in fraud of creditors or maintain an action to set aside such act, conveyance, transfer or agreement. Such claim, if disputed, may be established in such action. The judgment in such action may provide for the sale of the property involved, when a conveyance or transfer thereof is set aside, and that the proceeds thereof be brought into court or paid into the proper Surrogate’s Court to be administered according to law. Formerly Personal Prop. L. (L. 1897, ch. 417), § 7. (B,C. & G. Consol. L., 2nd Ed., p. 6156.) Section 268 of the Real Property Law has no application to an action by a cestut que trust against an executor or trustee of an express trust and his fraudulent grantee or vendee to annul a fraudulent conveyance of the trust property. Such a suit may be JUDGMENT CREDITOR’S ACTION. 199 maintained without authority of any statute. Agne v. Schwab (1908), 123 App. Div. 746, 108 N. Y. Supp. 487. No statute was ever needed to enable a cestui que trust to sue his trustee to set aside his fraudulent transfer of trust property and make him and his fraudulent grantee or vendee account therefor. Hence section 19 of the Personal Property Law does not apply to such a case. Agne v. Schwab (1908), 123 App. Div. 746, 748, 108 N. Y. Supp. 487. The creditor of a decedent may sue on his own behalf and for the benefit of all other creditors of the decedent to set aside con- veyances formerly made by the decedent for the purpose of de- frauding creditors without a prior demand on the debtor’s executor to bring the suit. Calkins v. Stedman (1911), 146 App. Div. 202, 130 N. Y. Supp. 932. But, if the plaintiff is not a creditor he cannot maintain the action. Ga Nun v. Palmer (1913), 159 App. Div. 86, 89, 144 N. Y. Supp. 457, mod. (1915), 216 N. Y. 603. A liquidating trustee to whom the assets of a bankrupt are trans- ferred pursuant to a composition agreement duly approved by the Federal court is a trustee for creditors and may, under the au- thority of section 19 of the Personal Property Law, maintain an action to set aside a fraudulent transfer by the alleged bankrupt notwithstanding the provisions of section 14 of the Bankruptcy Act of 1898 providing that upon the execution of a composition agreement the bankrupt shall become discharged from all his provable debts. A trustee may, under section 19 of the Personal Property Law, maintain an action without the recovery of a judgment against the insolvent debtor. Kobre Assets Corporation v. Baker (1917), 178 App. Div. 62, 164 N. Y. Supp. 597. ARTICLE IT. FRAUDULENT CONVEYANCES AND TRANSFERS. (Fiero, Spec. Act., 3rd Ed., pp. 887-916.) Supp. 1. Essential elements of fraudulent conveyances. 2. Voluntary conveyances. 4. Consideration as affecting legality of transfer. 5. Fraudulent intent and knowledge. 200 JUDGMENT CREDITOR’S ACTION. Subd. 1. Essential Elements of Fraudulent Conveyances. (Fiero, Spec. Act., 3rd Ed., pp. 887-888.) In the absence of statutory restrictions an insolvent debtor has the right to sell and transfer the whole or any portion of his prop- erty to one or more of his creditors in payment of or to secure his debts, when that is his honest purpose, although the effect of the sale or transfer is to place his property beyond the reach of his other creditors and render their debts uncollectible. Lehrenkrauss v. Bonnell (1910), 199 N. Y. 240. Subd. 2. Voluntary Conveyances. (Fiero, Spec. Act., 3rd Ed., pp. 888-890.) A voluntary conveyance by one indebted at the time is presump- tively fraudulent as against existing creditors. Kerker v. Levy (1912), 206 N. Y. 109; Bushby v. Berkeley (1914), 85 Mise. 178, 148 N. Y. Supp. 121. Subd. 4. Consideration as Affecting Legality of Transfer. (Fiero, Spec. Act., 8rd Ed., pp. 892-896.) A person may transfer lands without consideration providing he retains enough property to satisfy his creditors, and, until the evidence shows the contrary, the grantee is not bound to prove a consideration for the grant. Durland v. Crawford (1916), 172 App. Div. 283, 158 N. Y. Supp. 692. Mere inadequacy of price is not sufficient to predicate fraud. Bank of South Dayton v. Kellogg (1916), 161 N. Y. Supp. 542. Subd. 5. Fraudulent Intent and Knowledge. (Fiero, Spec. Act., 3rd Ed., pp. 896-916.) A voluntary transfer without consideration by one indebted is a fact from which an intent to defraud creditors may be inferred. Hickok v. Cowperthwait (1909), 184 App. Div. 617, 119 N. Y. Supp. 390. JUDGMENT CREDITOR’S ACTION. 201 ARTICLE IV. PLEADINGS. (Fiero, Spec. Act., 3rd Ed., pp. 925-939.) Susp. 1. Complaint. 2. Answer and defense. Subd. 1. Complaint. (Fiero, Spec. Act., 3rd Ed., pp. 925-937.) Where a judgment has been assigned, it is not necessary for the assignee, in a judgment creditor’s action, to allege a transfer of the general cause of action set forth in the complaint. It is not sufficient to authorize suit in equity to allege fraudulent intent on the part of a judgment debtor in making a conveyance, if it appears from other allegations of the complaint that such intent has not been consummated by acts which prevent the enforcement by ordinary remedies. Holland v. Grote (1908), 193 N. Y. 262, modfg., 125 App. Div. 418, 109 N. Y. Supp. 787. An allegation that the debtor possessed no property except the equitable assets sought to be reached in the action is not sufficient to show that the legal remedy has been exhausted. The statute (2 R. 8. 178, § 88; Code Civ. Pro. § 1871) providing for a creditor’s action to discover any property or chose in action belong- ing to the debtor does not make insolvency the basis of the action. Trotter v. Lisman (1910), 199 N. Y. 497. An allegation that, by the acts of the defendants, “it became impossible for the creditors of the railway company to enforce at law the collection of their claim and debts” is not a sufficient ground for the assumption of jurisdiction by a court of equity, for such allegation is not one of fact, but is the statement of the pleader’s conclusion. Trotter v. Lisman (1910), 199 N. Y. 497. The complaint in a judgment creditor’s action to set aside fraudulent conveyances which merely alleges that judgment against the defendant was recovered in a Municipal Court and was docketed in the office of the county clerk, is insufficient if it fail to allege facts showing that the Municipal Court had jurisdiction to render the judgment. The defect aforesaid is not cured by an allegation that the judgment was docketed in the county clerk’s office and that supplementary proceedings were duly instituted 202 JUDGMENT CREDITOR’S ACTION. thereon wherein the plaintiff was appointed receiver. Such com- plaint is also fatally defective where it merely alleges that the execution, returned unsatisfied, was issued to the sheriff of a certain county where the judgment debtor then had and still has a place for the regular transaction of business in person, for while such execution is a sufficient basis for supplementary proceedings, yet in a judgment creditor’s action, regulated by section 1872 of the Code of Civil Procedure, the plaintiff must show either that the execution was issued to the sheriff of the county where the debtor resided if a resident of the State, or to the sheriff of the county where he had an office for the regular transaction of busi- ness in person if a non-resident. Pendleton v. Friedman (1909), 135 App. Div. 420, 119 N. Y. Supp. 994. Where the complaint in a judgment creditor’s action to set aside a conveyance does not in words allege that the plaintiff has no adequate remedy at law but does allege and the proof shows that an exeuction against the property of the judgment debtor had been returned wholly unsatisfied it brings the case within section 1871 of the Code and plaintiff is entitled to maintain the action. Shenk v. Oliva (1916), 94 Misc. 702, 158 N. Y. Supp. 437, Subd. 2. Answer and Defense. (Fiero, Spec. Act., 3rd Ed., pp. 988-939.) A judgment creditor, in an action to set aside a fraudulent con- veyance, alleged that execution was returned unsatisfied at a given date, which was a short time before the action was com- menced. Defendant answered that the cause of action alleged in the complaint did not accrue within ten years before the commence- ment of the action. Plaintiff demurred to the defense. Held, while plaintiff was compelled to allege issue and return of execu- tion unsatisfied, and his cause of action did not acerue until such return, that time and place were not part of the cause of action, and hence defendant was not bound by his plea of the statute, to the statement of plaintiff as to date of such issue and return, but might show that the cause of action accrued at some other date, and that it was barred; hence the defense was not demurrable. Holland v. Grote (1908), 193 N. Y. 262, modfg., 125 App. Div. 413, 109 N. Y. Supp. 787. JUDGMENT CREDITOR’S ACTION. 203 ARTICLE V. MATTERS OF PRACTICE. (Fiero, Spec. Act., 8rd Ed., pp. 939-945.) The County Court has not jurisdiction, even by consent of the parties, of an action to set aside certain transfers of real estate alleged to have been made in fraud of creditors, where the plain- tiff asks for the appointment of a receiver and for an accounting of moneys and the judgment sought will not affect all of the defendants in the same way. Lrtrachter vy. Locust Building Co. (1918), 102 Mise. 368, 169 N. Y. Supp. 879. ARTICLE VI. EVIDENCE. (Fiero, Spec. Act., 3rd Ed., pp. 945-951.) While fraud must be proved and is never presumed, it may be shown by circumstantial evidence. Hickok v. Cowperthwait (1909), 184 App. Div. 617, 119 N. Y. Supp. 390. In a judgment ecreditor’s action to set aside a conveyance alleged to have been fraudulent it was error for the court to exclude evidence offered by the plaintiff to show that after the conveyance the defendants gave two chattel mortgages to other parties on the property conveyed. This because proof of contemporaneous con- veyances, no matter to whom made, is always relevant to an issue of fraudulent conveyance. Evidence of the circumstances under which conveyances are made and the consideration paid therefor, is also relevant on the issue of fraudulent intent. Wittemann Brothers v. Forman Bottling Co. (1917), 178 App. Div. 674, 165 N. Y. Supp. 811. ARTICLE VIII. JUDGMENT, ITS FORM AND EFFECT. (Fiero, Spec. Act., 8rd Ed., pp. 955-975.) The Code of Civil Procedure (§ 1879) does not prohibit the maintenance of a creditor’s action to reach a vested remainder in a fund held in trust, to receive the income and apply it to the use of a person other than the judgment debtor. Bergmann v. Lord (1909), 194 N. Y. 70. 204 JUDGMENT CREDITORS ACTION. A judgment debtor’s life insurance policy which provides that he may change the beneficiary at any time, is his personal prop- erty, and may be reached in a judgment creditor’s action. Cavagnaro v. Thompson (1912), 78 Mise. 687, 138 N. Y. Supp. 819. As to accrued earnings for services rendered by a husband within 60 days, the statutory exemption cannot be asserted against the wife in an action to secure payment of alimony, since she is one of the persons for whose benefit the exemption is made. Valentine v. Walliams, Inc. (1916), 159 N. Y. Supp. 815. Where a son’s interest was limited to such amounts as the execu- tors in the exercise of their judgment should see fit to apply to his support, and the balance remained a part of the trust estate to which the children were entitled, the court had no power to direct the application of any part thereof to the son’s debts. Myers v. Russell (1908), 60 Mise. 617, 112 N. Y. Supp. 520. Where a will creates a trust in personal property during the life of testator’s wife, and directs the trustees upon the wife’s death to divide the property equally and pay it to his son and daughter if they are then living, there is a gift to the son of a con- tingent future interest, which is “ property” within the meaning of section 1871 of the Code of Civil Procedure, and may be reached by a judgment creditor of the son through a suit in equity. National Park Bank of New York v. Billings (1911), 144 App. Div. 536, 129 N. Y. Supp. 846, affd., 203 N. Y. 556. JUDGMENT, ACTION UPON. See MiscetuanEous Actions anp Rieuts or AcTION. JUDICIAL SALES. See Rea Property, Provistons Re.atine To. LIENS ON CHATTELS, FORECLOSURE OF. See Cuarrets, ForecLosure or Liens Upon. LOST NEGOTIABLE PAPER, ACTION ON. See Miscettangous Actions ano Rieuts or AcTION. MATRIMONIAL ACTIONS. (Fiero, Spec. Act., 8rd Ed., pp. 976-1211.) ACTION TO ANNUL VOID OR VOIDABLE MARRIAGE. ART, I-VIII. Art. I. General provisions as to action to annul. II. Marriage annulled on ground of infancy. III. When voidable, former husband or wife living. IV. When annulled for idiocy or lunacy. V. When voidable for force, duress, or fraud. VI. Action on ground of physical incapacity. VII. Alimony pendente lite. VIII. Order for jury trial and judgment, how obtained and effect on judgment. ACTION FOR DIVORCE. ART. IX-XVII. Art. IX. When and how action for divorce maintained. X, Complaint. XI. Defenses. XII. Rights of co-respondents. XIII. How judgments to be taken by default. XIV. Trial by court or referee. XVI. Interlocutory and final judgment on report or decision. XVII. Remarriage, when allowed. ACTION FOR SEPARATION. ART. XVITII-XX. Art. XVIII. For what causes and in what cases action for separation main- tained. XIX. Pleadings and trial. XX. Judgment, what to contain and when revoked. PROVISIONS APPLICABLE TO MATRIMONIAL ACTIONS. ART. XXI-XXIX. Art. XXII. Indorsement of process and proof of service. XXIII. Answer and counterclaim. XXIV. Miscellaneous matters of practice. XXV. Alimony and counsel fees. XXVI. Evidence. XXVII. Judgment. XXVIII. Judgment for alimony, how enforced. XXIX. Costs and appeal. ACTION TO ANNUL A VOID OR VOIDABLE MARRIAGE, 205 206 MATRIMONIAL ACTIONS. ARTICLE I. GENERAL PROVISIONS AS TO ACTION TO ANNUL. (Fiero, Spee. Act., 3rd Ed., pp. 981-985.) Cope Civ. Pro., § 1742. Repealed. § 1743. Action for judgment declaring nullity of void marriage or annulling voidable marriage. Dom. Ret. L., § 5. Incestuous and void marriages. § 6. Void marriages. § 7. Voidable marriages. Code Civ. Pro., § 1742 repealed by L. 1919, ch. 144. Code Civ. Pro., § 1743. Action for judgment declaring nullity of void marriage or annulling voidable marriage. An action may be maintained to procure a judgment declaring the nullity of a void marriage or annulling a voidable marriage heretofore or hereafter entered into or contracted. Amended by L. 1916, ch. 605; L. 1917, ch. 244; L. 1918, ch. 311; L. 1919, ch. 144. Dom. Rel. L., § 5. Incestuous and void marriages. A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either: 1. An ancestor and a descendant; 2. A brother and sister of either the whole or the half blood; 3. An uncle and niece or an aunt and nephew. If wu marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner. Formerly Dom. Rel. L. (L. 1896, ch. 272), § 2; amended by L. 1907, ch. 742. (B.,C. & G. Consol. L., 2nd Ed., p. 1835.) Dom. Rel. L., § 6. Void marriages. A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either: 1. Such former marriage has been annulled or has been dissolved for a cause other than the adultery of such person; provided, that if such former marriage has been dissolved for the cause of the adultery of such person, he or she may marry again in the cases provided for in section eight of this chapter and such subsequent marriage shall be valid; 2. Such former husband or wife has been finally sentenced to imprisonment for life; 3. Such former husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time. Amended by L. 1915, ch. 266. Formerly Dom. Rel. L. (L. 1896, ch. 272), § 3. (B. C. & G. Consol. L., 2nd Ed., p. 1836.) MATRIMONIAL ACTIONS, 207 Dom. Rel. L., § 7. Voidable marriages. A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto: 1. Is under the age of legal consent, which is eighteen years; 2. Is incapable of consenting to a marriage for want of understanding; 3. Is incapable of entering into the married state from physical cause; 4. Consents to such marriage by reason of force, duress or fraud; 5. Has a husband or wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years then last past without being known to such party to be living during that time. Actions to annul a void or voidable marriage may be brought only as pro- vided in the Code of Civil Procedure. Formerly Dom. Rel. L. (L. 1896, ch. 272), § 4. (B.C. & G. Consol. L., 2nd Ed., p. 1842.) In actions to annul a marriage under the provisions of the Code of Civil Procedure the court acts as a court of equity. Berry v. Berry (1909), 130 App. Div. 53, 114 N. Y. Supp. 497. The jurisdiction of the court to annul marriage depends wholly upon the statute, except in those cases in which annulment is sought for some cause for which chancery has power to cancel or avoid all contracts, such as lunacy or fraud. Where a marriage is absolutely void because of the existence of a former spouse, the court has inherent power so to declare it. Roth v. Roth (1916), 97 Mise. 186, 161 N. Y. Supp. 99. Judgment annuling a marriage set aside because the court did not have jurisdiction. Davidson v. Ream (1916), 97 Mise. 89, 161 N. Y. Supp. 73, affd., 178 App. Div. 362, 164 N. Y. Supp. 1037. There is no general equitable jurisdiction to set aside marriages. The power to deal with matrimonial actions must be found in the statutes. The plaintiff in an action for the annulment of her marriage in which a judgment of a court of equity was entered in her favor, although the court had no jurisdiction, there being no statutory ground for the annulment, is entitled to have the judgment set aside, by a justice other than the one who presided at the trial, not because of any equitable consideration for her, but because the judgment does not rest upon jurisdictional facts, and because she has not been deprived of her marital rights by due process of law. Davidson v. Ream (1917), 178 App. Div. 362, 164 N. Y. Supp. 1037. The law of the matrimonial domicile governs an action for the 208 MATRIMONIAL ACTIONS. annulment of a marriage regardless of where it was solemnized or where the offense was committed. But in the absence of a statute of the State of the domicile expressly regulating foreign marriages the lex loct contractus governs the validity of the marriage, unless it be odious by the common consent of nations. Harle v. Earle (1910), 141 App. Div. 611, 126 N. Y. Supp. 317. Although an action for annulment is undefended, the court must have proof of the facts upon which the allegations of nullity are founded before it is justified in granting the decree. Vazakas v. Vazakas (1908), 109 N. Y. Supp. 568. Where, in an action for the annulment of a marriage upon the ground that when the contract was entered into the defendant was prohibited from remarrying by a decree of the court, an inter- locutory judgment was entered in favor of the plaintiff, a motion by the defendant to vacate such judgment, made a few days before the expiration thereof, and to excuse her default in pleading and permit her to interpose an answer, setting up a marriage in New Jersey, should be denied, where it appears that in a prior action by the defendant for a separation she had an opportunity to establish the alleged marriage in New Jersey, but conceded that she could not do so. Betts v. Betts (1915), 166 App. Div. 307, 151 N. Y. Supp. 790. A very important distinction exists between a void and voidable marriage. In the former case the marriage is void ab initio. It never was a marriage. The legislative authority to procure a formal declaration of its nullity by the court is clearly in the interest of the public for the purpose of affording conclusive evidence by judicial decree of the fact that the marriage was void and never had any legal effect. McCullen v. McCullen (1914), 162 App. Div. 599, 601, 147 N. Y. Supp. 1069. Annulment of a prior marriage will not validate a second mar- riage void under section 6 of the Domestic Relations Law. Barker v. Barker (1916), 172 App. Div. 244, 158 N. Y. Supp. 413. The marriage in good faith of a woman, whose husband dis- appeared five years before and who she had reason to believe was dead, is valid as to all the world, unless the first husband reappears and institutes an action to annul the same; and such marriage renders legitimate her child by the second husband, born before her second marriage. Matter of Del Genovese (1907), 56 Mise. MATRIMONIAL ACTIONS. 209 418, 107 N. Y. Supp. 1033, affd., 136 App. Div. 894, 120 N. Y. Supp. 1121. ARTICLE ITI. MARRIAGE ANNULLED ON GROUND OF INFANCY. (Fiero, Spec. Act., 8rd Ed., pp. 985-987.) Copr Civ. Pro., § 1744. Action when party was under the age of consent. Code Civ. Pro., § 1744. Action when party was under the age of consent. An action to annul a marriage on the ground that one or both of the parties had not attained the age of legal consent may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant’s person; or the court may allow the action to be maintained by any person, as the next friend of the infant. But a marriage shall not be annulled, at the suit of a party who was of the age of legal consent when it was contracted, or by a party who for any time after he or she attained that age, freely cohabited with the other party as husband or wife. Amended by L. 1916, ch. 605; L. 1919, ch. 144. The term cohabited is used in its popular rather than derivative meaning. Where one not yet eighteen years of age marries and after reaching such age, on one occasion at least, visited the apart- ment occupied by his wife, remained there over night and of his free will and accord had sexual intercourse with her, no action lies to annul the marriage on the ground that at the time it was contracted the husband had not attained the age of legal consent; the husband by such act must be deemed to have forfeited his right to an annulment of the marriage. Herrman v. Herrman (1916), 93 Mise. 315, 156 N. Y. Supp. 688, affd.,176 App. Div. 914, 162 N. Y. Supp. 1123. A marriage ceremony, performed in violation of a statute, between parties, one of whom is under the age of legal consent, which has not been consummated by cohabitation, is not valid and binding upon the parties beyond the power of the courts to annul, but in a proper case they may relieve the infant party. Cunningham v. Cunningham (1912), 206 N. Y. 341. The courts of this State have ample power to annul a marriage entered into outside the State by parties under the age of consent when the parties are citizens of the State and domiciled here. The courts of this State do not proceed in annulling the marriage of persons under the age of consent upon the theory that the mar- riage is absolutely void, but on the theory that it is voidable, owing 14 210 MATRIMONIAL ACTIONS. to extrinsic facts or circumstances surrounding or attending it, and do not contravene the rule of law that a marriage valid where contracted is valid everywhere. For that reason, the validity in a foreign jurisdiction of the marriage of citizens of the State of New York under the legal age of consent does not prevent the courts of this State from annulling the marriage of the parties after they return to their residence within the State. Mitchell v. Mitchell (1909), 63 Mise. 580, 117 N. Y. Supp. 671. Sections 1748 and 1744 of the Code of Civil Procedure, so far as they provide for the annulment of a marriage where one of the parties has not reached the age under which the consent of parents or guardians is necessary, do not apply to a marriage in this State. Where a boy under eighteen years of age marries a girl under the same age and cohabits with her after he is eighteen years old, the marriage will not be annulled upon the complaint of the boy’s father where the boy objects. In such case the marriage, as a matter of public policy, will be upheld if necessary as a common- law marriage. Allerton v. Allerton (1918), 104 Mise. 627, 172 N. Y. Supp. 152. Where at the time of their marriage the parties represented to the clergyman that they were of the age of legal consent, though the husband was not eighteen years of age and the wife was over twenty years of age, an action brought by the mother of the hus- band under sections 1744 and 1745 of the Code of Civil Pro- cedure to annul the marriage cannot be maintained where both the husband and wife object. Marone v. Marone (1918), 105 Mise. 371, 174 N. Y. Supp. 151. Where plaintiff, a resident of this State, when only twenty years of age, induced the defendant, who was also a resident of this State and ten years his senior, to enter into a marriage with him in the State of Pennsylvania, by making therein a false affidavit as to his age in order to obtain a marriage license and by repre- senting to her that he had the written consent of his father to the marriage but that he would not show it to the clerk of the court issuing the license, and it further appears that after the mar- riage, which presumably was valid in Pennsylvania, no objection was made by his parents on the return of the parties to the State of New York, where they continued to reside as husband and wife for a period of six months, when for reasons other than non-age, MATRIMONIAL ACTIONS. 211 plaintiff became dissatisfied and he and his wife separated, the marriage will be held valid under the laws of the State of New York, and its annulment on the ground that plaintiff was not twenty-one years of age at the time of the marriage will be denied upon the ground that plaintiff has not come into court in good conscience and with clean hands but was seeking to take advantage of his own wrong. Bays v. Bays (1918), 105 Mise. £92, 174 N. Y. Supp. 212. Where a marriage is entered into in a foreign State by a woman who under the laws where it was contracted had arrived at the age of consent, it will not be annulled at her suit because, under the laws of this State where she lived, she had not reached that age and the parties went into the foreign State to avoid the effect of the laws of New York. Reid v. Reid (1911), 72 Mise. 214, 129 N. Y. Supp. 529. Where residents of this State under eighteen vears of age, while sojourning in Canada, where marriage by them was permitted without restriction or condition of any character, intermarry and forthwith return to this State, an action to annul the marriage upon the ground that plaintiff, the husband, was under age when the marriage was consummated cannot be maintained. Donohue v. Donohue (1909), 68 Mise. 111, 116 N. Y. Supp. 241. But where a woman under the age of eighteen years, a resident of the city of Buffalo, goes to Canada and is there married to another citizen of the same city without the knowledge or consent of the woman’s sole surviving parent or guardian, and the parties at once return to this State and after living together two months separate, it will be inferred that the relation established by the marriage was intended by the parties to be sustained in the State of New York, and such relation is therefore subject to the laws of this State, so far as they authorize a dissolution thereof by judicial proceedings for any cause. Mitchell v. Mitchell (1909), 63 Mise. 580, 117 N. Y. Supp. 671. Where two persons, resident of this State, the woman being under the age of legal consent as fixed by statute in both states, went to New Jersey and were married, and the marriage was not followed by cohabitation, held, that the marriage of the woman without the knowledge or consent of her parents was repugnant to our public policy and legislation, and our courts have the power 212 MATRIMONIAL ACTIONS. to relieve plaintiff by its annulment. Cunningham v. Cunningham (1912), 206 N. Y. 341. An annulment of marriage contracted by a girl under sixteen years of age may be decreed where the marriage took place with the consent of the parents or guardian. An action for an annul- ment may be maintained by an infant above sixteen years of age and under eighteen years of age, under section 1743 of the Code of Civil Procedure, although the parents or guardian of the in- fant consented to the marriage. The provisions of the Domestic Relations Law relative to marriage licenses, expressly permitting the issuance of a license to a woman under eighteen years of age where the consent of the parents or guardian is obtained, do not modify sections 1742 and 1743 of the Code. Kruger v. Kruger (1910), 187 App. Div. 289, 122 N. Y. Supp. 23, revg., 64 Mise. 382, 119 N. Y. Supp. 189. A girl married under the age of fifteen years, whose cohabitation with her husband ended before reaching the age of eighteen years, is entitled to an annulment of the marriage, and this right is not barred by her laches of over five years, where it appears that she was an ignorant girl and had been told that after five years she would have a right to a divorce without any court proceedings. Macri v. Macri (1917), 177 App. Div. 292, 164 N. Y. Supp. 112. Where the judgment in an action for a separation, begun before plaintiff became eighteen years of age, was not entered until after that time and since the entry of the judgment defendant has been paying the alimony for which provision was made therein, the judgment is a bar to an action brought by plaintiff after she be came twenty-one years of age to annul the marriage on the ground of her non-age. Terrky v. Terrky (1916), 96 Mise. 594, 160 N. Y. Supp. 1016. Where plaintiff, in an action to annul a marriage on the claim of his non-age, was eighteen years and four months old when, with- out his parents’ consent, he married defendant in the State of New Jersey which has no statute fixing the age of legal consent, his complaint must be dismissed upon the merits. Padula v. Padula (1916), 96 Mise. 597, 160 N. Y. Supp. 833. The right of a mother to maintain an action to annul the mar- riage of her son as under the age of legal consent, is neither stayed nor abrogated because the defendant wife had theretofore brought MATRIMONIAL ACTIONS. 213 a similar action. Long v. Baxter (1912), 77 Misc. 630, 138 N. Y. Supp. 505. An infant who marries under the age of eighteen years, with the written consent of her mother, but leaves her husband before she arrives at that age is entitled to maintain an action to annul the marriage under section 1743 (1). Mundell v. Coster (1913), 80 Mise. 337, 142 N. Y. Supp. 142. An action by the father for the annulment of a marriage will not lie where the husband who was 19 years of age obtained a marriage license upon his statement that he was 22 years old, and contracted a valid marriage without his father’s consent. (reen- berg,v. Greenberg (1916), 97 Misc. 153, 160 N. Y. Supp. 1026. Where, in an action to have a marriage adjudged null and void ab initio upon the ground that plaintiff was under age at the time of her marriage and that the necessary legal consent, etc., had not been obtained, it not only appears that there was no intention on the part of either plaintiff or defendant that the formal ceremony should be considered as a valid and legal marriage, but it is affirmatively established that the ceremony was entered into as a mere subterfuge for the purpose of obtaining a certificate of marriage which could be used by plaintiff in her endeavor to obtain a theatrical engagement thereby overcoming the objection that being under the legal age she could not be provided with an engagement without first having the consent of her mother or guardian to such employment, and it further appears that the marriage was never consummated and that defendant joined in the prayer for relief for the annulment of the marriage and that both plaintiff and defendant subsequently contracted other marital relations, the evidence is sufficient to justify a court of equity in granting the relief prayed for. Dorgeloh v. Murtha (1915), 92 Mise. 279, 156 N. Y. Supp. 181. ARTICLE ITT. WHEN VOIDABLE, FORMER HUSBAND OR WIFE LIVING. (Fiero, Spec. Act., 3rd Ed., pp. 987-992.) Copr Crv. Pro., § 1745. Id.; when former husband or wife was living. Code Civ. Pro., § 1745. Action when former husband or wife was living. An action to annul a marriage, upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, 214 MATRIMONIAL ACTIONS. may be maintained by either of the parties during the life-time of the other, or by the former husband or wife. Amended by L. 1918, ch. 444; L. 1919, ch. 202. Any one of the three persons concerned may maintain the action, that is, either of the parties to the later marriage and the party to the former marriage who was not a party to the later one. Ifa woman marries when her husband by a former marriage is alive both marriages cannot be in full force at that time. Assuming that there was no divorce, either the subsequent marriage is void or the former marriage is suspended or in abeyance, and if this ig so, it is not reinstated by the return of the absentee, but is voidable and not void until so adjudged. Otherwise both mar- riages would be in force at the same time and to this extent polygamy would be sanctioned by law. The marriage between the parties to the later marriage is thus either void or voidable. If the wife knew or should have known that fact at the time, it was absolutely void with no binding force upon either party and their relations were not sanctioned by law, whether they realized it or not. If she did not then know it within the true meaning of the statute and she married the second time in the full belief, after due observance of the five years’ provision, that her first husband was dead, the marriage was not void but voidable, binding upon both parties thereto until action by the court, and their relation was that of honorable marriage. The inquiry to find out whether a husband or wife who has disappeared is yet alive must be made with an honest effort to find out the truth and the inquiry must be continued in good faith and with the diligence required bv the statute. Stokes v. Stokes (1910), 198 N. Y. 301, revg.. 128 App. Diy. 838, 115 N. Y. Supp. 142. A polygamous marriage is void without decree of court, but the courts will entertain an action to declare its invaliditv. Where an action for divorce brought in a foreign country against a resident of this State was not perfected by reason of the fact that the decree was not registered with the proper civil authorities, a second marriage by such person with a woman also a resident of this State is polygamous, and its invalidity will be declared in a suit for an annulment. Harle v. Earle (1910), 141 App. Div. 611, 126 N. Y. Supp. 317. Section 1745 of the Code of Civil Procedure should not be MATRIMONIAL ACTIONS. 215 construed to mean that a husband who has knowingly contracted a bigamous marriage may maintain an action to annul the same. The object of the section is to protect the innocent and relieve those who have acted in good faith. Said section should be con- strued to mean that a second marriage can be annulled on the ground aforesaid on the suit of the party whose spouse was living only when contracted in good faith after the former spouse has absented himself or herself for five successive years last past without being known to the plaintiff to have been living during that time. Berry v. Berry (1909), 180 App. Div. 58, 114 N. Y. Supp. 497. In an action to annul a marriage on the ground that a former husband of defendant is still living the plaintiff is not entitled, as a matter of right, to the custody of the issue of the marriage, or to have the same declared his legitimate offspring, unless it appear that he either did not know of the former marriage or believed the former husband to be dead. The fact that the de- fendant told him before the marriage that she had obtained a valid divorce in another State from her first husband and that he believed her and married her relying on such statement, does not bring him or the children of the marriage within the protection of section 1745 of the Code of Civil Procedure. Baylis v. Baylis (1911), 146 App. Div. 517, 181 N. Y. Supp. 671, affd., 207 N. Y. 446. Where a husband remarried before the lapse of five years with no reason to believe that his former wife was dead, and after dis- covering that his first wife was living continued to cohabit with the second wife, the court acting upon general principles of equity, will not annul the second marriage at the husband’s suit, but will leave him where he has placed himself. Berry v. Berry (1909), 130 App. Div. 53, 114 N. Y. Supp. 497. A marriage by a woman, prohibited from marrying by a decree of divorce, to a man, having to her knowledge a wife living, is void ab initio. Dye v. Dye (1910), 140 App. Div. 309, 125 N. Y. Supp. 242. Although a woman married a man with the knowledge that he was already bound by a valid and subsisting marriage, she is en- titled nevertheless to a decree annuling the marriage, for it is 216 MATRIMONIAL ACTIONS. absolutely void. Brown v. Brown (1912), 153 App. Div. 645, 138 N. Y. Supp. 602. One who seeks to annul a marriage because his wife had another husband living at the time of the marriage and because her alleged divorce from such former husband was void has the burden of showing facts which render the marriage void. Hall v. Hall {1910), 139 App. Div. 120, 123 N. Y. Supp. 1056. Proof of prior marriage is not alone sufficient for annulment; there is a presumption in favor of innocence of defendant, to be overcome by evidence showing that former spouse had not absented himself for a period sufficient to raise presumption of death. Hagin v. Fagin (1915), 88 Mise. 304, 151 N. Y. Supp. 809; Lazarowicz v. Lazarowicz (1915), 91 Mise. 116, 154 N. Y. Supp. 107. Where the defendant does not appear in an action to annul a second marriage on the ground that the husband by the former marriage is still living, the plaintiff need merely allege and prove the former marriage, that the former husband was living at the time of the marriage with the plaintiff, and that the former mar- riage has not been annulled or dissolved. It is not necessary for the plaintiff to negative by allegation, or proof, the exceptions or provisos contained in this section. MecCullen v. McCullen (1914), 162 App. Div. 599, 147 N. Y. Supp. 1069. An action to annul a marriage against a defendant who entered into it in good faith believing that her husband who had abandoned her and absented himself for more than five years was dead, but -who was in fact alive, may be maintained during the lifetime of ‘the parties; and the ten years’ Statute of Limitations is not -applicable thereto. Chittenden v. Chittenden (1910), 68 Mise. 172, 123 N. Y. Supp. 629; Chittenden v. Chittenden (1909), 64 Misc. 649, 118 N. Y. Supp. 1005, affd., 187 App. Div. 932, 123 N. Y. Supp. 1110. Where an action is brought by a husband to annul a marriage upon the ground that his wife bas a former husband living, in that a decree of divorce which she obtained in a foreign State against her non-resident husband was null and void because service was made by publication and he did not appear, the former husband is not entitled to be brought in as a party defendant in the action for annulment on his own motion, being neither a MATRIMONIAL ACTIONS, Q17 necessary nor a proper party. Tysen v. Tysen (1910), 187 App. Div. 134, 121 N. Y. Supp. 962. Where in an action to annul a marriage it appears that the parties acted in good faith and in the belief, after full and care- ful inquiry, that defendant’s first husband, from whom she had not heard for over seven years and did not know him to be alive, was dead, plaintiff is entitled to judgment though he knew all the defendant knew about the facts before he married. Tiedemann v. “edemann. (1916), 94 Misc. 449, 157 N. Y. Supp. 1101. Where defendant, in an action to annul a marriage, contracted a void marriage, for the reason that prior to the marriage he had been divorced in this State and by the terms of the divorce was forbidden to remarry during the lifetime of his former wife, and his former spouse was alive at the time of the second marriage, the court has inherent jurisdiction to declare the second marriage a nullity, although it is probable that it has no statutory juris- diction. Gardner v. Gardner (1917), 98 Misc. 411, 162 N. Y. Supp. 365. Where, in an action to annul a marriage upon the theory that it was void ab initio, and to compel the defendant to return certain property obtained by her through deeds and separation agreements, it appears that at the time of the marriage the defendant, a widow without means, had for several years been living as the mistress of another, and that prior to the marriage plaintiff and defendant had entered into meretricious relations, he having been fully in- formed by her of the character of the life she was leading, and shortly after their marriage, during a serious illness, plaintiff not only transferred valuable real and personal property to de- fendant, but made a will in her favor, the marriage will be held valid and the separation agreements held to be valid and sub- sisting contracts. Moller v. Sommer (1914), 86 Misc. 110, 149 N. Y. Supp. 103, affd., 165 App. Div. 990, 150 N. Y. Supp. 1097. In an action to annul a marriage entered into in August, 1914, on the ground that the defendant had another husband living at the time of her marriage to plaintiff it appeared that an inter- locutory decree had been entered in her favor in an action against the former husband for divorce and that about ten days before the entry of the final decree she was married to plaintiff, who testified 218 MATRIMONIAL ACTIONS, that at the time of his marriage to defendant, he did not know that said final decree had not been entered. It further appeared that from the time of the marriage sought to be annulled until about a week before the present action was commenced the parties had lived as husband and wife. J/eld, that though the marriage involved in the present action was illegal yet having apparently been entered into in good faith with intent to contract a valid marriage plaintiff was not entitled to the relief asked, for the reason that the facts disclosed made out a valid common-law mar- riage. Wulson v. Burnett (1918), 105 Mise. 279, 172 N. Y. Supp. 673. It is error to dismiss the complaint in an action for the annul- ment of a marriage brought on the ground that the defendant then had and still has a wife living, where it appears that although the former marriage was dissolved by the decree of a foreign court on the grounds of cruelty, the summons was served by the de fendant in the second action on the defendant in the former action by publication only, and the decree was entered upon his default in appearing. Under such circumstances the prior divorce was void. Tysen v. Tysen (1910), 140 App. Div. 370, 125 N. Y. Supp. 479. Where, in an action to annul a marriage between the plaintiff and the defendant, performed in Connecticut when they were residents of this State, on the theory that it was void on the ground that the defendant had a former husband living at the time, it appears that the plaintiff persuaded and induced the present de- fendant to obtain a divorce and supplied the necessary funds to enable her to go to and remain in Nevada for such purpose and was fully aware of all the material facts with respect thereto and with respect to the absence of her former husband at the time he married her, and that he advised and assured her that the divorce so obtained would be and was valid, the plaintiff is not in a posi- tion to contend that the Nevada divorce was void for want of jurisdiction because procured only by constructive service of pro- cess, even though the defendant’s husband was then a resident of this State. Kaufman v. Kaufman (1917), 177 App. Div. 162, 163 N. Y. Supp. 566. Where a woman remarries while her first husband is still living, the second marriage is absolutely void, and will be declared to be MATRIMONIAL ACTIONS. 219 so in a suit brought by the second husband, although after the second marriage the first marriage was annulled, on the ground that it was induced by the false representations of the first hus- band. The second marriage is not validated by ratification after the annulment of the first marriage merely because the parties thereto continue to cohabit as man and wife, if there was no new solemnization of the second marriage in the manner required by the statute. McCullen v. McCullen (1914), 162 App. Div. 599, 147 N. Y. Supp. 1069. Action to annul marriage, former husband living, comity, de cree of foreign State dissolving marriage, force and effect of erroneous New York decree. Post v. Post (1912), 149 App. Div. 452, 133 N. Y. Supp. 1057, affd., 210 N. Y. 607. Where in an action to annul a marriage between the plaintiff and defendant, on the ground that the defendant at the time the marriage was solemnized had a husband living, it appears that the plaintiff and defendant were married in South Carolina; that prior thereto the defendant had procured a divorce from her former husband in the State of Alabama, their last matrimonial domicile; that the defendant, who was then a resident of the State of Mississippi, was not personally served and did not appear, but was served by publication and by mail, a judgment in favor of the plaintiff should be reversed. Schenker v. Schenker (1918), 181 App. Div. 621, 169 N. Y. Supp. 35. As to validity and effect of foreign divorce, see subdivision 6 of article XT, post. ARTICLE IV. WHEN ANNULLED FOR IDIOCY OR LUNACY. (Fiero, Spec. Act., 8rd Ed., pp. 993-994.) Cope Civ. Pro., § 1749. Legitimacy of children. Code Civ. Pro., § 1749. Legitimacy of children. The following provisions govern the effect of declaring 4 marriage void or annulling a voidable marriage upon the legitimacy of children of the marriage: 1. If a marriage be annulled on the ground that one or both of the parties had not attained the age of legal consent, a child of the marriage is deemed the legitimate child of both parents. 2. If a marriage be annulled on the ground of the idiocy or lunacy of one of the persons entering into the marriage, a child of the marriage is deemed the legitimate child of the parent of sound mind, and the court by the judg- 220 MATRIMONIAL ACTIONS. ment may decide that a child of the marriage is the legitimate child of the parent of unsound mind. 3. If a marriage be annulled on the ground of the idiocy or lunacy of both of the persons entering into the marriage, the court by the judgment may decide that a child of the marriage is the legitimate child of either or both parents. 4. If a marriage be annulled on the ground of force, duress or fraud, a child of the marriage is deemed the legitimate child of both parents unless the court by the judgment decides otherwise as to either or both parents, 5. If a marriage be declared a nullity as incestuous, a child of the marriage is deemed the legitimate child of both parents. 6. If a marriage be declared a nullity or annulled upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, if it appears, and the judgment determines, that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead or that the former marriage had been annulled or dissolved, or without any knowledge on the part of the innocent party of such former marriage, a child of such subsequent marriage is deemed the legitimate child of the parent who at the time of the marriage was competent to contract. If either or both parties to such subsequent marriage were incompetent to con- tract, the court by the judgment may decide that a child of the marriage is the legitimate child of such incompetent. 7. If a marriage be declared a nullity or annulled for any cause or under any conditions other than those specified in the foregoing subdivisions, the court by the judgment may decide that « child of the marriage is the legitimate child of either or both of its parents. 8. If the court be authorized by this section to decide that a child of a marriage is the legitimate child of either or both of its parents, the judgment may limit the effect of legitimatization to rights other than succession to real and personal property of a deceased parent. Amended by L. 1919, ch. 202. The committee of the person and property of an incompetent cannot as such, under section 2340 of the Code of Civil Procedure, maintain an action to annul the marriage of the incompetent on the ground that he is a lunatic and was such at the time of his marriage. Since the action to annul a marriage is purely statu- tory, such an action can be maintained only by a relative, or next friend, of the incompetent, or the incompetent himself, after his restoration to sanity. Walter v. Walter (1916), 217 N. Y. 489, affg., 170 App. Div. 870, 156 N. Y. Supp. 713. When an incompetent has not been declared insane, such in- competent is a necessary party to an action to annul a marriage contracted by him during incompetency, although it is brought by a relative appointed to bring the action as next friend. Ander- son v. Hicks (1912), 150 App. Div. 289, 134 N. Y. Supp. 1018. MATRIMONIAL ACTIONS. 221 To annul a marriage on the ground of lunacy, it must be satis- factorily shown that the party in whose behalf the action is brought was mentally incapable of understanding the nature, effect and consequences of the marriage; proof of insane delusions or hallucinations on other subjects is not sufficient. Meekins v. Kinsella (1912), 152 App. Div. 82, 186 N. Y. Supp. 806. An action to annul a marriage on the ground that the defendant, at the time of the marriage, was a lunatic and has ever since con- tinued so to be, may only be brought in her behalf or by herself after restoration to sound mind, and a motion for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action will be granted. Reed v. Reed (1919), 106 Misc. 85, 175 N. Y. Supp. 264. Where a marriage is annulled because of the lunacy of the wife existing at the time of the marriage, the husband may not appoint a testamentary guardian for a child, the issue of such marriage, if its mother is still living. Matter of Tombo (1914), 86 Mise. 361, 149 N. Y. Supp. 219. ARTICLE V. WHEN VOIDABLE FOR FORCE, DURESS, OR FRAUD. (Fiero, Spec. Act., 8rd Ed., pp. 994-1001.) Copr Civ. Pro., § 1751. Custody and maintenance of children. Code Civ. Pro., § 1751. Custody and maintenance of children. If a marriage be declared a nullity or annulled, the court by the judgment or by subsequent order, may award the custody of a child of the marriage to either party as the interests of the child require, and may make pro- vision for his education and maintenance out of the property of either or both of its parents if the marriage shall have been declared a nullity, and out of the property of the guilty parent, if the marriage shall have been annulled. Amended by L. 1919, ch. 202. Misrepresentations as to chastity may be grounds for an annul- ment of a marriage for fraud because, as a matter of law, it may be material upon the question of consent, which is essential to the contract of marriage. Domschke v. Domschke (1910), 138 App. Div. 454, 122 N. Y. Supp. 892. A marriage will not be annulled for fraud unless the facts mis- represented or concealed go to the very essence of the marriage contract. Roth v. Roth (1916), 97 Misc. 136, 161 N. Y. Supp. 99. MATRIMONIAL ACTIONS. An annulment of a marriage on the ground of fraud should not he granted solely upon the testimony of the plaintiff that the de- fendant, who before the marriage protested his undying love, shortly after the marriage told her that he did not love her and never intended to, and insisted that she get a divorce from him. Schaeffer v. Schaeffer (1913), 160 App. Div. 48, 144 N. Y. Supp. TT4. Where, in a wife’s action to have her marriage with defendant annulled for fraud it appears that he procured plaintifi’s consent to the marriage by false representations as to his past life, though frankly stating it was not spotless and that he knew plaintiff regarded these matters as material, without which she would not have married him, and neither the interests of the community nor of their child require that the court should refuse to free the plaintitf from the marriage, she will be given judgment annulling same. Libinan v. Libman (1918), 102 Mise. 444, 169 N.Y. Supp. 900. The burden of proof in an action for the annulment of a mar- riage on the ground of fraud is on plaintiff to show not only that the misrepresentation complained of was as to a fact which was an essential element of plaintiff’s assent to the marriage, but also that such misrepresentation was of such a nature as to deceive a per- son of ordinary prudence. Bahrenburg v. Bahrenburg (1914), 88 Mise. 272, 150 N. Y. Supp. 589. Where, in an action for the annulment of a marriage upon the ground of force, duress and fraud based upon the fact that at the time of such marriage defendant was an epileptic and that she concealed such infirmity from the plaintiff, and upon the claim that the defendant threatened to kill the plaintiff unless he married her, it appears that the parties voluntarily cohabited subsequent to the marriage, the alleged force and duress must be deemed to have been waived. McGill v. McGill (1917), 179 App. Div. 343, 166 N. Y. Supp. 397; 99 Misc. 86, 163 N. Y. Supp. 462. Allegations that defendant represented to plaintiff his age as twenty-one when in fact he was but twenty years and some months, and that just prior to their marriage he told her she need not leave her home and could always continue to reside there, are insufficient to justify a decree annulling the marriage on the ground of fraud, though it has not been consummated by co- bo to oo MATRIMONIAL ACTIONS, habitation, where each of the parties was over the age of legal consent. Williams v. Walliams (1911), 71 Mise. 590, 130 N. Y. Supp. 875. In an action to annul a marriage on the ground of fraud and hypnotic influence practiced by the wife, thereby preventing that consent or meeting of the minds requisite to constitute a valid contract, evidence held insufficient. Vazakas v. Vazakas (1908), 109 N. Y. Supp. 568. Where the complaint in an action for the annulment of a mar- riage alleges that plaintiff was induced to marry defendant on his representations that he was an honest and law abiding citizen and a duly licensed attorney at law, that after the marriage plain- tiff learned that defendant had done time as a convict, and that he was not a member of the bar, but the testimony of defendant as to improper intimacy with plaintiff prior to their marriage is corroborated by two reputable physicians, both of whom testified that with plaintiff’s consent they made a physical examination of her, the complaint must be dismissed. Berus v. Berus (1914), 83 Mise. 624, 146 N. Y. Supp. 554. In an action to annul a marriage on the ground that defendant falsely represented to plaintiff that her illegitimate child had been born in lawful wedlock to her and F., it appears that at the time of the marriage plaintiff knew that defendant had been unchaste with at least another beside himself, and he made no effort to verify defendant’s statement as to the place where and the year in which she claimed that her ceremonial marriage to F. had taken place, and it further appears that defendant, who denied having made the misrepresentation alleged, in answer to a printed ques- tion in the marriage license described herself as never having been married, plaintiff fails to establish his case by that fair pre- ponderance of evidence required by law, and judgment will be granted in favor of defendant. Bahrenburg v. Bahrenburg (1914), 88 Mise. 272, 150 N. Y. Supp. 589. Where a wife upon her discovery, only a few hours after her marriage, that her husband had been previously married, without having cohabited with him returns to her home and has since resided there, her marriage will be annulled upon the ground of fraud. Weill v. Weill (1918), 104 Mise. 561, 172 N. Y. Supp. 589. 224 MATRIMONIAL ACTIONS. Where it appears that a man met a woman in another State; that he wished to marry her, knowing that she was already mar- ried; that she obtained a divorce to his knowledge and that there- upon they were married, he cannot avoid the marriage for fraud in obtaining the divorce. Hall v. Hall (1910), 139 App. Div. 120, 123 N. Y. Supp. 1056. A wife, after having been married three years, cannot maintain an action to annul her marriage on the ground that three years before it was contracted her husband told her he was perfectly well, where in the intervening six years he had enjoyed periods of good health, but at the end of the period his health had declined and physicians pronounced his malady tuberculosis, and where it appears that he had previously received medical treatment adapted to that disease, but had thereafter improved under such treatment and subsequently enjoyed apparent good health. Gumbiner v. Gumbiner (1911), 72 Mise. 211, 181 N. Y. Supp. 85. Where defendant before her marriage was pregnant by another than her husband, the plaintiff, who neither before nor after the marriage had sexual intercourse with her and did not know of such pregnancy at the time of the marriage, is entitled to have it annulled for fraud. Fontana v. Fontana (1912), 77 Misc. 28, 185 N. Y. Supp. 220. Where, in an action to annul a marriage on the ground that defendant, knowing himself to be afflicted with tuberculosis, was guilty of fraud in concealing from and misrepresenting to plaintiff the actual facts, knowledge of which plaintiff alleges would have precluded her from entering into the marriage, and it appears that within a few days subsequent to the marriage a physician diagnosed defendant’s case as tuberculosis and incurable, and that thereafter plaintiff no longer continued to cohabit with him, and there are no children of the marriage, plaintiff will be granted a judgment. Sobol v. Sobol (1914), 88 Mise. 277, 150 N. Y. Supp. 248. Where, in an undefended action to annul a marriage, plaintiff testifies that she was induced to marry defendant in reliance upon his representations that he would marry her and that with her money, and money of his own, defendant would buy a hotel and go into business, and she further testifies that two days after the marriage she drew her money from the savings bank and gave it to defendant upon his representation that it was to be paid on MATRIMONIAL ACTIONS. 225 account of the purchase price of the hotel and that up to the date of the trial of the action she had not seen defendant nor learned of his whereabouts, judgment will be awarded in her favor. Robert v. Robert (1914), 87 Misc. 629, 150 N. Y. Supp. 366. Where, after the birth of a child of which plaintiff was the father, the mother coerced him by threats of bodily violence, to be inflicted by her brother, to go through the form of a marriage ceremony and he complied upon the express understanding, em- bodied in a writing, that they should never live together as hus- band and wife nor have any claim upon each other because of, or arising from, the marriage ceremony, and it is established that they had not cohabited or lived together as husband and wife, plaintiff is entitled to a decree of annulment on the ground that his consent to the marriage was procured under duress. Houle v. Houle (1917), 100 Misc. 28, 166 N. Y. Supp. 67. Proof that immediately after defendant’s marriage to plaintiff, who was pregnant by him, he took her to her mother’s house and left her, never went to see her, and within a day or two after the marriage ceremony left the place where he was and since, for more than six years, has neither been seen nor heard from, justifies a finding that when the marriage ceremony was performed defendant never intended to fulfill the duties of a husband to a wife, but at that time intended to abscond and abandon her, and in an action to annul the marriage for fraud plaintiff will be granted a decree. Moore v. Moore (1916), 94 Mise. 370, 157 N. Y. Supp. 819. A marriage although consummated will be annulled for fraud where the woman on inquiry of her intended husband stated that she had been the wife of a man then deceased, and that he was the father of her child, when in truth she had been his mistress and the child was a bastard, if the plaintiff did not cohabit with her after the discovery of the fraud. It is true that such mis- representation does not go to the essentialia of the marriage con- tract, as prior chastity is not a necessary qualification for mar- riage, but chastity, if insisted upon, may be made an essential qualification. Domschke v. Domschke (1910), 138 App. Div. 454, 122 N. Y. Supp. 892. 15 226 MATRIMONIAL ACTIONS. ARTICLE VI. ACTION ON GROUND OF PHYSICAL INCAPACITY. (Fiero, Spec. Act., 3rd Ed., pp. 1001-1003.) ‘Cope Civ. Pro., § 1752. Action on ground of physical incapacity. ‘Code Civ. Pro., § 1752. Action on the ground of physical incapacity. An action to annul a marriage, on the ground that one of the parties was physically incapable of entering into the marriage state, may be maintained ‘by the injured party against the party whose incapacity is alleged; or such ‘an action may be maintained by the party who was incapable against the other party, provided the incapable party was unaware of the incapacity at the time of marriage, or if aware of such incapacity, did not know it was incurable. Such an action can be maintained only where the incapacity con- tinues and is incurable; and must be commenced before five years have ‘expired since the marriage. Amended by L. 1919, ch. 144. The courts decline to grant annulment for physical incapacity where, by reason of the advanced years of the parties at the time of the marriage, the desire for support and companionship, rather than the usual motives of marriage, must have actuated them. ‘The marriage of a soldier’s widow fifty-six years old and drawing a pension with one sixty-nine years of age will not be annulled for his physical incapacity. Hatch v. Hatch (1908), 58 Mise. 54, 110 N. Y. Supp. 18. This statutory limitation is part of our public policy. It de- ‘elares a rule of the ecclesiastical courts, that the injured party ‘cannot unreasonably delay proceedings for relief without being ‘open to the charge of want of sincerity and promptitude. Divorces ‘for alleged impotency early led to abuse and fraud. Hence the limit on the time to avoid a marriage rests upon a basis quite ‘different from the periods to begin other civil suits. Deitch v. Deitch (1914), 161 App. Div. 492, 146 N. Y. Supp. 782. The Statute of Limitations upon an action to annul a marriage upon the ground that the defendant was impotent, having merely rudimentary signs of the genital organs, is governed solelv by section 1752 of the Code of Civil Procedure requiring such action to be commenced before five years have expired since the marriage. Such action cannot be maintained as one for the fraud of the defendant in representing himself to be potent, and is not governed by the six-year statute preseribed by section 382 of the Code of MATRIMONIAL ACTIONS. 227 Civil Procedure. Deitch v. Deitch (1914), 162 App. Div. 25, 146.N. Y. Supp. 1019, affd., 213 N. Y. 708. An order at the Special Term permitting the defendant in an action for the annulment of a marriage on the ground of physical incapacity to amend his answer by alleging that the plaintiff did not commence the action within five years from the time of the marriage of the parties, affirmed. Deitch v. Deitch (1914), 161 App. Div. 492, 146 N. Y. Supp. 782. If a slight operation will remove the incapacity without en- dangering life and health, the fact that one refuses to submit to such an operation does not justify annulment; but if the in- capacity can be cured only by a dangerous operation it is incurable within the law. Anonymous (1916), 158 N. Y. Supp. 51. Where at the time of his marriage a husband fraudulently con- cealed his physical incapacity and the marriage was never con- summated, the wife is entitled to an annulment. Although the action for annulment was not commenced within the time limited by section 1752 of the Code of Civil Procedure, the court cannot refuse to annul the marriage if the defense was not taken by the answer. JfcNair v. McNair (1910), 140 App. Div. 226, 125 N. Y. Supp. 1, revg., 68 Mise. 570, 125 N. Y. Supp. 191. A marriage will not be annulled, in the absence of fraud, be- cause of the wife’s epilepsy, which limited but did not prevent copulation. Elser v. Hlser (1916), 160 N. Y. Supp. 724. Where a wife sues to annul her own marriage on the ground of her own physical incapacity resulting in a hysterical condition and mental and emotional disturbances and produces medical testimony which is neither precise in revelation nor clear in description of the physical conditions and fails to substantiate the plaintiff’s contention, her application for judgment should be denied, without prejudice to a renewal upon additional proof. Anonymous v. Anonymous (1910), 69 Mise. 489, 126 N.Y: Supp. 149. Although fraud is alleged in an action to annul a marriage because of physical incapacity, the allegation will be treated as surplusage. Deitch v. Deitch (1914), 162 App. Div. 25, 146 N. Y. Supp. 1019, affd., 218 N. Y. 708. 228 MATRIMONIAL ACTIONS. ARTICLE VII. ALIMONY PENDENTE LITE. (Fiero, Spec. Act., 8rd Ed., pp. 1003-1006.) ‘The allowance of temporary alimony and counsel fees to the wife in an action to annul a marriage is to be determined, not alone by the husband’s means, but by the wife’s necessities. Thus, where it appears that the wife has an ample income of her own her motion for alimony and counsel fees should be denied. Brand v. Brand (1917), 178 App. Div. 822, 166 N. Y. Supp. 90. Where a husband sues his wife for an annulment of the mar- riage upon the ground of her physical incapacity to enter the marriage state, the wife, having denied the allegations of the complaint, is entitled to alimony pendente lite. Oppenheimer v. Oppenheimer (1912), 153 App. Div. 636, 188 N. Y. Supp. 648. Where a husband sues for the annulment of a second marriage upon the ground that a former wife is still living the marriage to whom has not been annulled or dissolved, the defendant is en- titled to alimony and counsel.fees pendente lite, because she is entitled to have the status of the plaintiff as to his competency to contract the second marriage established, and because even if he were incompetent she is entitled to have the legitimacy of her children established. Hrlanger v. Erlanger (1916), 175 App. Div. 767, 159 N. Y. Supp. 353. Where a wife has successfully defended an action to annul the marriage for alleged physical incapacity and for fraud, the court is without power to compel the plaintiff to pay for the past services and expenses of her counsel. Schroter v. Schroter (1907), 57 Mise. 199, 107 N. Y. Supp. 1065. As to alimony and counsel fees generally, see article XXY, post. ARTICLE VIII. ORDER FOR JURY TRIAL AND JUDGMENT, HOW OBTAINED AND EFFECT OF JUDGMENT. (Fiero, Spec. Act., 3rd Ed., pp. 1006-1008.) Under section 17538 of the Code of Civil Procedure a judgment annulling a marriage cannot be rendered upon defendant’s de- fault without proof of the facts upon which the allegation of MATRIMONIAL ACTIONS. 229 nullity is founded. Williams v. Williams (1911), 71 Misc. 590, 130 N. Y. Supp. 875. The provision that a final judgment annulling a marriage rendered during the lifetime of both parties is conclusive evidence of the invalidity of the marriage, is merely a rule of evidence with respect to the effect of the decree as evidence; but was not intended thereby to declare a rule of law with respect to whether the marriage should be deemed invalid from the date of its cele- bration or from the date of the decree, and those matters were left to be regulated by the provisions of the Domestic Relations Law. MecCullen v. McCullen (1914), 162 App. Div. 599, 147 N. Y. Supp. 1069. ACTION FOR DIVORCE. ARTICLE IX. WHEN AND HOW ACTION FOR DIVORCE MAINTAINED. (Fiero, Spec. Act., 8rd Ed., pp. 1008-1013.) The courts of this State have no common-law jurisdiction over the subject of divorce, and their authority is confined altogether to the exercise of such express and incidental powers as are con- ferred by the statute. Ackerman v. Ackerman (1910), 200 N.Y. 72. The right of a party to the marriage contract to have it dis- solved by reason of the infidelity of the other party is given as a favor to the injured party and the action must be brought voluntarily. Lake v. Lake (1908), 124 App. Div. 89, 108 N. Y. Supp. 964. The mere fact that parties have been married in this State is not sufficient to confer jurisdiction on the court in an action for divorce irrespective of their residence. Barber v. Barber (1915), 89 Misc. 519, 151 N. Y. Supp. 1064. An action of divorce is of a personal nature which in the absence of statutory provision abates with the death of the party bringing it. Section 763 of the Code of Civil Procedure, providing for the entry of final judgment on the death of a party after interlocutory judgment, applies only to actions which do not abate by death. Matter of Crandall (1909), 196 N. Y. 127. 230 MATRIMONIAL ACTIONS, ARTICLE X. COMPLAINT. (Fiero, Spec. Act., 3rd Ed., pp. 1013-1021.) Supp. 1. When averments in complaint sufficient. Subd. 1. When Averments in Complaint Sufficient. The four defenses to divorce prescribed in section 1758 of the Code of Civil Procedure are not available unless pleaded, and although rule 72 of the General Rules of Practice requires that in cases of default the first three defenses be negatived by the plaintiff in the complaint or by affidavit, the fourth defense — that is to say, the adultery of plaintiff — need not be denied. Thompson v. Thompson (1908), 127 App. Div. 296, 111 N. Y. Supp. 426. The provisions of rule 72 of the General Rules of Practice in regard to certain allegations apply only where the defendant makes default and has no application to contested actions. Acker- man v. Ackerman (1908), 128 App. Div. 750, 108 N. Y. Supp. 534, affd., 200 N. Y. 72. ARTICLE XI. j DEFENSES. (Fiero, Spec. Act., 8rd Ed., pp. 1021-1038.) H Supp, 1. Collusion. . Condonation. . Action not brought within five years. . Plaintiff guilty of adultery. . Foreign divorces. . Other defenses. mn P co LD Subd. 1. Collusion. (Fiero, Spec. Act., 3rd Ed., pp. 1021-1022.) Where in an undefended action for divorce the husband plain- tiff, a Hebrew, testifies that he was married in Russia to defend- ant, who is also a Hebrew, that when they had been in this country about seven years, at her solicitation he gave her a “ Get” in the presence of ten witnesses and that she went back to Russia and MATRIMONIAL ACTIONS. 231 he has never seen her since, and there is evidence to show that thereafter she was married in Russia to another and is living with him as his wife, there must be judgment for a dismissal of the complaint upon the merits, as the offense complained of was com- mitted by the procurement of the plaintiff or with his connivance. Shilman v. Shilman (1918), 105 Mise. 461, 174 N. Y. Supp. 385, Subd. 2. Condonation. (Fiero, Spec. Act., 38rd Ed., pp. 1022-1024.) Where it is shown that the plaintiff in an action for divorce voluntarily cohabited with the defendant after the entry of an interlocutory judgment in his favor a final judgment entered pursuant to section 1774 of the Code of Civil Procedure on the expiration of three months will be vacated on motion, for the offense has been condoned. Cary v. Cary (1911), 144 App. Div. 846, 129 N. Y. Supp. 444. Evidence not sufficient to warrant a finding that the wife did not. condone her husband’s acts by living and sleeping with him for six weeks or more after she had contracted a venereal disease from him. Moore v. Moore (1912), 185 N. Y. Supp. 425. Subd. 3. Action not Brought Within Five Years. (Fiero, Spec. Act., 3rd Ed., p. 1024.) Section 1758 of the Code of Civil Procedure provides: ‘“ In either of the following cases the plaintiff is not entitled to a divorce, although the adultery is established: * * * 3. Where there has been no express forgiveness, and no voluntary cohabita- tion of the parties, but the action was not commenced within five years after the discovery, by the plaintiff, of the offense charged.” This period of five years begins when a plaintiff discovers that the defendant has contracted a second marriage and is living and cohabiting with the woman as his wife, although such cohabitation is continued down to the commencement of the action. Ackerman v. Ackerman (1910), 200 N. Y. 72. The continued non-residence of a party excepts by virtue of section 401 the right of a plaintiff to bring an action, from the five-year limitation prescribed by section 1758, nor is the facet that a plaintiff may commence an action by the substituted service of process provided by section 435 and the following sections of 232 MATRIMONIAL ACTIONS. the Code of Civil Procedure material on this question. Ackerman v. Ackerman (1910), 200 N. Y. 72. Neither the period of five years after the discovery of the adultery which forms the ground for an action of absolute divorce, limited for the commencement of such an action by section 1758 of the Code of Civil Procedure, nor the period prescribed by the general Statute of Limitations, runs while the defendant is with- out the jurisdiction of the court where process may not be per- sonally served upon him. Gouch v. Gouch (1910), 69 Misc. 436, 127 N. Y. Supp. 476. A decree of divorce should not be denied upon the ground that the action was not commenced, as required by section 1758 of the Code of Civil Procedure within five years after the discovery by the plaintiff of the offense charged, where the proof shows that the defendant after deserting the plaintiff in 1891 obtained a void divorce in Florida in 1896, and the plaintiff, though hearing he ‘had married, after using every effort did not find out with whom the marriage was contracted, where it took place or where the defendant was located, except in an indfienite way, until through the efforts of her brother she learned these facts in 1902 and brought her action within five years thereafter. Ackerman v. Ackerman (1908), 123 App. Div. 750, 108 N. Y. Supp. 534, affd., 200 N. Y. 72. Subd. 4. Plaintiff Guilty of Adultery. (Fiero, Spee. Act., 8rd Ed., pp. 1024-1025.) A defendant in an action for divorce who alleges as a separate defense that the plaintiff at various times and places within and around the city of New York, not precisely known to the de fendant, lived in adultery with a person named, should be com- pelled to give a bill of particulars as to the time and place at which such adultery was committed, even though the answer de- mands no affirmative relief. Wers v. Weis (1908), 123 App. Div. 409, 107 N. Y. Supp. 1061. Subd. 5. Foreign Divorces. (Fiero, Spec. Act., 8rd Ed., pp. 1025-1037.) Where a husband who sued as a resident of a foreign State for absolute divorce on the ground of abandonment, served his wife, MATRIMONIAL ACTIONS. 233 a resident of this State, by publication, and she voluntarily ap- peared in that action, denied the plaintiff’s residence and filed a cross-bill for divorce, a judgment in his favor is binding here. He is not hable to arrest in a subsequent action for divorce brought in this State by his former wife, as the matrimonial relation of the parties has ended. Strauss v. Strauss (1907), 122 App. Div. 729, 107 N. Y. Supp. 842. Where it appears that a foreign court had ‘jurisdiction of the subject-matter of an action for divorce and also of the parties, the courts of this State will give full faith and credit to the decree rendered. A judgment rendered in another State may be attacked collaterally for fraud perpetrated upon the court or upon a party, but a stranger to the judgment can only impeach it for fraud which injuriously affects him. Hall v. Hall (1910), 189 App. Div. 120, 128 N. Y. Supp. 1056. Where a foreign court has jurisdiction of an action for divorce and the defendant, resident of this State, personally appears in the action, the decree is conclusive and binding upon the courts of this State so long as it remains in force. It cannot be attacked collaterally here. Guggenheim v. Wahl (1910), 138 App. Div. 269, 122 N. Y. Supp. 941. A foreign decree of divorce is conclusive in this State under the full faith and credit clause of the Federal Constitution where the plaintiff was domiciled in a foreign State and the defendant appeared in the action and the court of the foreign State had jurisdiction of the subject-matter and the parties. A judgment so obtained cannot be attacked collaterally in this State even though it was collusive. Rupp v. Rupp (1913), 156 App. Div. 389, 141 N. Y. Supp. 484. The courts of this State will not recognize the validity of a foreign divorce obtained against a resident of this State on the ground of desertion where process was served by publication with- out personal service upon the defendant, either within or without the foreign State, and where the defendant had no notice of the commencement of the action or of the application for the decree until after it had been entered. Ackerman v. Ackerman (1908), 123 App. Div. 750, 108 N. Y. Supp. 534, affd., 200 N. Y. 72. While the courts of this State have uniformly protected its citizens against the decrees obtained by a constructive process in 234 MATRIMONIAL ACTIONS. foreign jurisdictions, they have not gone so far as to protect a non-resident, and declare void a decree granted in a foreign juris- diction against a non-resident of this State. In order to avoid a foreign decree of divorce, it must be shown that the defendant was at the time of the rendition of the decree a resident of this State. Kaufman v. Kaufman (1916), 160 N. Y. Supp. 19. Where, after a husband and wife have lived together for six years in Vermont, the wife abandons her husband and comes into this State and the husband obtains a decree of absolute divorce in Vermont, upon service of process upon the wife in this State where she was temporarily sojourning, pursuant to an order of the Vermont court, such judgment is valid and binding upon the parties and a bar to a subsequent action by the wife for an absolute divorce in this State after the husband has married again. Benham v. Benham (1910), 69 Misc. 442, 125 N. Y. Supp. 923. Where, in an action for divorce brought in another State against a defendant resident in this State, the defendant is served by pub- lication; and, where the matrimonial domicile, or last joint domi- cile of the parties, was in the State where the action was brought, the decree is valid and binding upon the parties. Callahan v. Callahan (1909), 65 Mise. 172, 121 N. Y. Supp. 39. Within two years after his marriage to plaintiff in this State, defendant without. justification left her and their child and went to another State where in less than two years he obtained a decree of divorce on the ground of her cruelty. Though she was served with process in this State she never entered an appearance in the action and at no time lived in the State where the decree was granted. Held, that she was entitled to a decree of absolute divorce on the ground of defendant’s misconduct with one whom, after the divorcee granted to him, he married in another State, a further marriage ceremony between them being celebrated in this State a few days later. Rontey v. Rontey (1917), 101 Mise. 166, 166 N. Y. Supp. 818. Where a wife procures a foreign decree of absolute divoree, and another woman in reliance thereon married defendant, the com- plaint in the former wife’s action for divorce, subsequently insti- tuted in this State, will be dismissed on the merits on the ground that she is estopped froin questioning the validity of the foreign MATRIMONIAL ACTIONS, 235 decree obtained by her. Simmonds v. Simmonds (1912), 78 Mise. 571, 138 N. Y. Supp. 639. The prosecution of an action brought in a foreign State by a woman to procure a judgment setting aside a judgment of divorce obtained by her against her husband in that State will not be enjoined in a suit brought in this State by a woman whom the divorced husband subsequently married, where she was not a party to the foreign action for divorce, and is not a party to the action sought to be enjoined. Guggenheim v. Wahl (1910), 138 App. Div. 269, 122 N. Y. Supp. 941, Where a husband in a foreign State obtains a decree of divorce in accordance with the laws of that State, even if the wife be in this State and does not appear in the action and is only served by publication, the decree, in the absence of evidence showing that she had acquired a domicile other than that of her husband, is valid, as, in the absence of such evidence, her domicile will be presumed to have been his. But, where it appears that the parties while living in this State separated and the husband thereafter went to the foreign State, where he procured a divorce, the wife’s domicile is not presumed to have followed that of the husband to the foreign State, but to have remained in this State, where she continued to reside, and the subsequent marriage of the husband during her lifetime will be presumed to be invalid. Harry v. Dodge (1910), 66 Mise. 302, 123 N. Y. Supp. 37. Where, during the pendency of an action for a separation, the parties agree to live separate and apart, the husband to pay the wife a certain sum a week while she continues to be his wife, a foreign decree of divorce granted to the husband, without juris- diction of the wife having been obtained, is no defense to an action to recover for his default in making the weekly payments. Licht v. Licht (1914), 88 Mise. 107, 150 N. Y. Supp. 643. Where in an action for divorce the defense is that the marriage between the parties has already been dissolved by a judgment of divorce granted to plaintiff in Norway, it is immaterial that such divorce may be valid where granted as whether our courts will recognize such decree depends upon our own law. Lie v. Lie (1916), 96 Mise. 3, 159 N. Y. Supp. 748. Validity of rabbinical divorce between Russian Jewish subjects. Saperstone v. Saperstone (1911), 73 Mise. 631, 131 N. Y. Supp. 236 MATRIMONIAL ACTIONS. 241. oP CO LD Subd. 1. The Right of Action, and Limitation Thereof. (Fiero, Spec. Act., 3rd Ed., pp. 2038-2043.) Code Civ. Pro., § 1902. Action for causing death by negligence, etc. The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent who has left him or her surviving a husband, wife, 560 WRONGS, ACTION TO RECOVER DAMAGES FOR. 561 or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued. Such an action must be commenced within two years after the decedent’s death. When the husband, wife or next of kin, do not participate in the estate of decedent, under a will appointing an executor, other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin shall be entitled to have an administrator appointed for the purpose of prosecuting such action for their benefit. Amended by L. 1909, ch. 21; L. 1915, ch. 620. It is now settled beyond the possibility of profitable discussior that section 1902 of the Code of Civil Procedure gives a cause of action that is new and distinct from the common law action for damages on account of personal injuries based on negligence. Kelleher v. New York Central, etc. R. Co. (1914), 212 N. Y. 207, affg., 153 App. Div. 617, 188 N. Y. Supp. 894. The cause of action is created by the statute and is original and not deriva- tive. It is not a part of and has no relation with the estate of the decedent. Hamilton v. Erie R. R. Co. (1916), 219 N. Y. 3438. A cause of action for the recovery of damages for the pecuniary injury resulting from death is purely a statutory one. It is not founded upon the violation of any natural right known to the common law. It is a new cause of action which is wholly distinct from and not a reviver of the cause of action which, if he had survived, the decedent would have for his bodily injury. This cause of action is in the nature of a property right arising out of the interest which one has in the life of another upon whom one is or may be dependent or to whose services he is entitled. Matter of Brennan (1914), 160 App. Div. 401, 145 N. Y. Supp. 440. The general provisions of the Code dealing with the limitation of actions apply to actions brought under section 1902. Boffe v. Consolidated Telegraph & Electrical Subway Co. (1916), 171 App. Div. 392, 157 N. Y. Supp. 318. Section 405 allowing the commencement of a new action within one year, although the statute of limitations on the original cause of action has expired, applies to an action brought under section 1902, where the dismissal of the complaint at the close of plain- tiff’s evidence was affirmed on appeal without granting a new trial. 36 562 WRONGS, ACTION TO RECOVER DAMAGES FOR, Hoffman v. Delaware & Hudson Co. (1914), 163 App. Div. 50, 148 N. Y. Supp. 509. The sole right to maintain an action to recover damages for death caused by negligence is created by and depends upon the provisions of the statute of the State where the accident occurred. Schwertfeger v. Scandinavian American Line (1919), 186 App. Diy. 89, 174 N. Y. Supp. 147. Section 29 of the Workmen’s Compensation Law, providing that “such a cause of action assigned to the State may be prosecuted or compromised by the Commission,” does not operate to repeal by implication the provisions of section 1902 of the Code of Civil Procedure in so far as the cause of action relates to claims to compensation under said law, especially where there is no conflict between the two statutes. Travelers Ins. Vo. v. Padula Co. (1918), 184 App. Div. 791, 170 N. Y. Supp. 869. No action is maintainable under section 1902 unless the de cedent at the time of his death, could have maintained an action. Accordingly, the rule is that where the cause of action was barred by the statute of limitations at the date of the decedent’s death, no action can be maintained by his representative. Kelleher v. New York Central, etc. R. Co. (1914), 212 N. Y. 207, affg., 153 App. Div. 617, 138 N. Y. Supp. 894. As an action to recover damages for negligence causing death is wholly statutory, and as such action can only be brought by a personal representative of the decedent, an action brought before the appointment of a representative is premature, and the defend- ant is entitled to a dismissal of the complaint. Boffee v. Con- solidated Telegraph & Electrical Subway Co. (1916), 171 App. Div. 392, 157 N. Y. Supp. 318. Although intestate permitted his action for personal injuries to lapse, an administrator’s action brought on behalf of next of kin, within two years after intestate’s death, is in time. Kelleher vy. New York Central & H. R. R. Co. (1912), 77 Mise. 330, 136 N. Y. Supp. 256. Sees. c. 153 App. Div. 617, 138 N. Y. Supp. 894, affd., 212 N. Y. 207. Although a contractor engaged in blasting has given a bond as security against loss or damage to persons or property resulting from explosives, the administrator of a person who was killed by a blast cannot recover against the surety, where the action was WRONGS, ACTION TO RECOVER DAMAGES FOR, 563 not commenced within two years after the death as required by section 1902 of the Code. made under section 374 of the Election Law providing for an examination of ballot boxes. Matter of Thomas (1915), 216 N.Y. 426, revg., 171 App. Div. 977, 160 N. Y. Supp. 977, which affirms 92 Mise. 483, 156 N. Y. Supp. 43. If, upon an inspection of the ballot boxes under an order granted pursuant to section 374 of the Election Law, it appears that ballots marked “ protested,” “ wholly void” or “ wholly blank” have, by inadvertence or otherwise, been deposited in the ballot box instead of being placed in a separate package as required by statute. the court may determine that such ballots were improperly canvassed by the board of inspectors and order the error corrected. People ex rel. Cantor v. County Board of Canvassers (1914), 165 App. Diy. 142, 150 N. Y. Supp. 480. The statute providing for a recanvass of ballots is not susceptible of a construction which will justify an order of the court directing election officers to open a box of voted ballots months after the close of an election, examine the ballots contained therein, and without any marks of identification appearing on said ballots, aided only by a recollection of the situation as it existed on the night of elec- ELECTION LAW. 791 tion day, endeavor to select the identical ballots declared void at the time of the canvass. People ex rel. Brown v. Freisch (1915), 215 N. Y. 356, revg. (1915), 168 App. Div. 370, 153 N. Y. Supp. 277. Although Congress is the final judge of the qualifications of its own members, until a certificate of election has been transmitted and acted upon, the courts of this State are open to a candidate who complains that the certificate is about to issue in violation of the law. People ex rel. Brown v. Supervisors of Suffolk (1916), 216 N. Y. 732. A writ of mandamus directing the inspectors of election of a town meeting where local option questions under the Liquor Tax Law were voted upon to count certain ballots which were by them returned as void is a proceeding that may not be entertained by virtue of any inherent powers of the court, but must find authoriza- tion and support in the express provisions of some statute or statutes, and is not authorized under section 381 of the Election Law. Matter of Tamney v. Atkins (1913), 209 N. Y. 202. Where no reason for an earlier decision is shown, a candidate for public office is not entitled to an examination of ballots upon which his name lawfully appears, until the official canvass of the vote has been completed and the Secretary of State has issued his certificate of election. Matter of Whitman (1918), 105 Mise. 74. ARTICLE VI. MANDAMUS TO COUNTY OR STATE BOARD. (Fiero, Spec. Pro., 3rd Ed., pp. 1154-1157.) A county board of canvassers performs ministerial functions, and cannot be required to include in its statement of canvass facts not prescribed by statute. People ex rel. Gerling v. Board of Canvassers of Monroe County (1917), 163 NX. Y. Supp. 987. The court should not attempt, by mandamus, to direct a board of elections in arranging the order of the names of candidates upon the ballot, especially when the board follows the rule of action laid down by the Legislature, unless its action is so unjust, arbitrary and discriminatory as to shock the conscience. Walsh v. Boyle (1917), 166 N. Y. Supp. 681. Inspectors of election cannot be compelled by mandamus to 792 ELECTION LAW. recanvass the vote and pass upon the validity of ballots which they had before counted as valid. People ex rel. Cantor v. Forman (1915), 154 N. Y. Supp. 689. Where a soldier ballot marked “ Dr. Brush” had not been pro- tested, and the inspectors of election had credited the vote to Edward IF’. Brush because such intention of the voter was clearly apparent, a writ of mandamus will not lie to compel the inspectors of election to correct their return. People ex rel. Fiske v. Ander- son (1918), 181 App. Div. 705, 168 N. Y. Supp. 839. But where a ballot was marked with the word “ Fiske” and the in- spectors failed to find the voter’s intent to be for the relator Edwin W. Fiske and there was no protest in regard to the ballot, the court, on application for a writ of mandamus to correct the return, has no authority to count said vote for the relator. People ex rel. Fiske v. Schum (1918), 181 App. Div. 717, 168 N. Y. Supp. 967. Where local inspectors, not provided with tally sheets as required by section 334 of the Election Law, after they had -can- vassed soldiers’ votes, returned the result, a candidate for mayor, upon affidavit that he had been informed by an inspector and watcher that the true results of the count had been transposed by the inspectors, is not entitled to a writ of mandamus to correct the return, as the court has no power in such a proceeding to open the ballot box and direct a recanvass of the votes. People ex rel. Fiske v. Bantz (1918), 181 App. Div. 702, 168 N. Y. Supp. 965. Mandamus is the proper remedy for the correction of an elec- tion return falsely stating the vote registered by a voting ma- chine, although the election law does not so provide. Such a cor- rection does not require a recount of the votes, and the writ in no sense compels a judicial act. Matter of Smith v. Wenzel (1915), 171 App. Div. 123, 157 N. Y. Supp. 85, affd., 216 N. Y. 421. Mandamus does not lie to compel the board of elections of the city of New York to enroll a voter in the Republican party where through his own mistake he unintentionally placed his mark in the Democratic circle of the enrolment blank. Matter of Jackson v. Britt (1911), 147 App. Div. 87, 181 N. Y. Supp. 877. A writ of mandamus directing the inspectors of election of a town meeting where local option questions under the Liquor Tax Law were voted upon to count certain ballots which were by them returned as void, is a proceeding that may not be entertained by ELECTION LAW. 793 virtue of any inherent powers of the court, but must find au- thorization and support in the express provisions of some statute or statutes. Tamney v. Atkins (1913), 209 N. Y. 202, revg., 151 App. Div. 309, 186 N. Y. Supp. 865. If the result of a town election held at a different time than the general election has been improperly declared by the town board of canvassers there is a remedy by quo warranto, but not by mandamus under section 381 of the Election Law. Matter of Baldwin (1913), 80 Misc. 263, 141 N. Y. Supp. 51. ARTICLE VII. CORRUPT PRACTICES. (Fiero, Spec. Pro., 8rd Ed., pp. 1157-1158.) Under section 540 and 546 of the Election Law, a “ political committee ” exists wherever three or more persons co-operate to bring about the election or defeat of a candidate or a proposition at an election, and if they make any expenditure of money in so doing they must report their receipts and disbursements. Thus, as the Home Rule Tax Association of the State of New York cir- culated literature seeking to defeat a constitutional amendment at the polls, and sought to induce electors to vote against the proposi- tion, it constituted a “ political committee ” and must file a report of its receipts and expenditures in its political campaign. Matter of Woodbury (1916), 174 App. Div. 569, 160 N. Y. Supp. 902. ELECTION OF OFFICERS OF CORPORATIONS, HOW REVIEWED. See Corporation, Erection oF Orricers or, How Reviewen. EMINENT DOMAIN, EXERCISE OF. See ConDEMNATION OF ReEat PROPERTY. ERRONEOUS ASSESSMENT, HOW RECEIVED AND CORRECTED, See Tax Law, Certiorari To Revirw AssEssMENT. FEDERAL BANKRUPTCY LAW. See Depron AND CREDITOR Law. FORECLOSURE BY ADVERTISEMENT. (Fiero, Spec. Pro., 8rd Ed., pp. 1184-1214.) Art. I. When statutory remedy may be enforced. II. Notice of sale; contents, filing and service. III. Sale; its effect and record thereof. V. Surplus meney and proceedings with regard thereto. ARTICLE TI. WHEN STATUTORY REMEDY MAY BE ENFORCED. (Fiero, Spec. Pro., 3rd Ed., pp. 1185-1188.) Cope Civ. Pro, § 2387. When mortgage may be foreclosed. Code Civ. Pro., § 2387. When mortgage may be foreclosed. A mortgage upon real property, situated within the state containing therein a power to the mortgagee, or any other person, to sell the mortgaged property, upon default being made in «a condition of the mortgage, may be foreclosed, in the manner prescribed in this title, where the following requisites concur: 1. Default has been made in a condition of the mortgage, whereby the power to sell has become operative. 2. An action has not been brought to recover the debt secured by the mortgage, or any part thereof; or, if such an action has been brought, it has been discontinued, or final judgment has been rendered therein against the plaintiff, or an execution, issued upon a judgment rendered therein in favor of the plaintiff has been returned wholly or partly unsatisfied. 3. The mortgage has been recorded in the proper book for recording mort- gages, in the county wherein the property is situated. 4. The first notice required by subdivision one of the next section is pub- lished within the time in which an action could be maintained to foreclose such mortgage. Amended by L. 1913, ch. 486. ARTICLE II. NOTICE OF SALE; CONTENTS, FILING AND SERVICE. (Fiero, Spec. Pro., 8rd Ed., pp. 1188-1194.) Supp. 2. Notice of sale, publication, filing and service. Cope Civ. Pro., § 2396. Affidavit of sale, and of posting, serving, et cetera, notice. Subd. 2. Notice of Sale, Publication, Filing, and Service. (Fiero, Spec. Pro., 3rd Ed., pp. 1190-1194.) Code Civ. Pro., § 2396. Affidavit of sale, and of posting, serving, et cetera, notice. ‘ An affidavit of the sale, stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; the 794 FORECLOSURE BY ADVERTISEMENT. 795 name of the purchaser of each distinct parcel; and the name of the person or persons, court officer or other officer, to whom the proceeds of the sale were paid, and the sums thereof must be made by the person who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his foreman or principal clerk. An affidavit of the affixing of a copy of the notice, at or near the entrance of the proper court house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, or upon any other person, upon whom the notice must or may be served, may be made by the person who made the service. Where two or more distinct parcels are sold to different purchasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels. Amended by L. 1912, ch. 343. It is now settled law in this State that the purchaser at a mort- gage sale under an attempted statutory foreclosure, void as against the mortgagor for want of notice, becomes assignee of the mort- gage, and of course, each subsequent grantee becomes in turn assignee thereof. Ketcham v. Deutsch (1914), 211 N. Y. 85, revg., 152 App. Div. 904, 187 N. Y. Supp. 402. ARTICLE III. SALE; ITS EFFECT AND RECORD THEREOF. (Fiero, Spec. Pro., 3rd Ed., pp. 1194-1204.) Supp. 2. Affidavit of sale and record thereof. Cope Civ. Pro., § 2396. Affidavit of sale, and of posting, etc. 3. Effect of sale; deed not necessary. Subd. 2. Affidavit of Sale and Record Thereof. Code Civ. Pro. § 2396. Affidavit of sale, and of posting, serving, et cetera, notice. An affidavit of the sale, stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; the name of the purchaser of each distinct parcel; and the name of the person or persons, court officer or other officer, to whom the proceeds of the sale were paid, and the sums thereof must be made by the person who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his foreman or principal clerk: An affidavit of the affixing of a copy 796 FORECLOSURE BY ADVERTISEMENT. of the notice, at or near the entrance of the proper court house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, or upon any other person, upon whom the notice must or may be served, may be made by the person who made the service. Where two or more distinct parcels are sold to different pur- chasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels. Amended by L. 1912, ch. 343. Subd. 3. Effect of Sale; Deed Not Necessary. (Fiero, Spec. Pro., 3rd Ed., pp. 1201-1204.) The affidavits of publication, etc., now take the place of the conveyance formerly executed by the one having the power of sale. Ketcham v. Deutsch (1914), 211 N. Y. 85, revg., 152 App. Div. 904, 1387 N. Y: Supp. 402. ARTICLE V. SURPLUS MONEY AND PROCEEDINGS WITH REGARD THERETO. (Fiero, Spec. Pro., 3rd Ed., pp. 1206-1211.) CopE Civ. Pro., § 2408. Limitation of last four sections. Code Civ. Pro., § 2408. Limitation of last four sections. The last four sections do not apply to surplus money, arising upon the sale of real property, of which a decedent died seized, where letters testamentary or letters of administration, upon the decedent’s estate, were, within two years before the sale, issued from a surrogate’s court within the state, having jurisdiction to issue them. Amended by L. 1915, ch. 626. Sections 2798, 2799 have been revised and placed in the Surro- gates’ Code (L. 1914, ch. 443), and now may be found in sections 2707, QT11. GENERAL ASSIGNMENT FOR BENEFIT OF CREDITORS. See Desror AND Crepitor Law. HABEAS CORPUS TO BRING UP A PERSON TO -TESTIFY. (Fiero, Spec. Pro., 8rd Ed., pp. 1215-1218.) Cope Civ. Pro., § 2011. The last three sections qualified. Code Civ. Pro., § 2011. The last three sections qualified. Such a writ may be issued by the appellate division of the supreme court in any department, or by the presiding justice thereof, upon such terms and conditions, and under such regulations as such appellate division or presiding justice prescribed, to bring up a prisoner sentenced to death, upon the application of or upon notice to the district attorney of the county in which the attendance of the prisoner is desired and upon proof that such prisoner is a necessary and material witness in a criminal action then pend- ing and that the interests of public justice require his attendance. A writ shall not be issued, by virtue of either of the last three sections, or in any way except as in this section provided for, to bring up a prisoner sentenced to death. Nor shall it be issued to bring up a prisoner confined under any other sentence for a felony; except by and in the discretion of a justice of the supreme court upon such notice to the district attorney of the county wherein the prisoner was convicted, and upon such terms and con- ditions, and under such regulations, as the judge prescribes. Amended by L. 1914, ch. 183; L. 1915, ch. 354. Where a defendant arrested in a civil action is brought before the court upon a writ of habeas corpus ad testificandum the court has no authority summarily and without notice to the plaintiff to vacate the order of arrest, and especially so where previous applica- tions to vacate the order have been denied. Polo v. D’Achille (1918), 157 App. Div. 300, 142 N. Y. Supp. 511. As no judge, court or officer, other than the Governor, can sus- pend the execution of a defendant sentenced to the punishment of death, except when the sheriff is authorized so to do, the Supreme Court has no power to stay the execution of a death sentence in order that the defendant may be brought before the court on habeas corpus to testify upon a hearing for a new trial. People v. Von Den Corput (1917), 177 App. Div. 682, 164 N. Y. Supp. 987. 797 HABEAS CORPUS AND THE WRIT OF CERTIORARI. (Fiero, Spec. Pro., 3rd Ed., pp. 1219-1316.) Art. I. When habeas corpus granted. III. Duty of court, officer, or other person relative to writ. IV. Return must be made to writ, and notice of hearing. V. Proceedings on return. VI. Miscellaneous matters of practice. VII. Proceedings when prisoner discharged and effect of discharge. IX. When warrant of attachement issues. X. Certiorari to inquire into cause of detention. XI. Appeal. ARTICLE I. WHEN HABEAS CORPUS GRANTED. (Fiero, Spec. Pro., 8rd Ed., pp. 1223-1252.) Supp, 1. Nature and purpose of writ. 1 2. When writ granted on behalf of persons imprisoned. 3. When writ granted to determine custody of child. 4. When writ granted in extradition cases. d. Miscellaneous statutory provisions allowing writ. Insanity Law, § 93. Habeas corpus. 6. Habeas corpus on commitment for contempt. Subd. 1. Nature and Purpose of Writ. (Fiero, Spec. Pro., 3rd Ed., pp. 1223-1227.) The object of the writ of habeas corpus is not to determine whether a person has committed a crime, but whether he is illegally imprisoned or restrained of his liberty. People ex rel. Armstrong v. Quigley (1912), 75 Mise. 151, 134 N. Y. Supp. 953; People cx rel. Hdelstein v. Warden of City Prison (1912), 154 App. Div. 261, 188 N. Y. Supp. 1095. The writ of habeas corpus is not a writ of review; its sole func- tion is to relieve from unlawful imprisonment, and the sole in- quiry whether the mandate or the judgment by virtue of which the prisoner is detained is void. People ex rel. Hubert v. Kaiser (1912), 150 App. Div. 541, 135 N. Y. Supp. 274, affd., 206 N. Y. 46; People ex rel. Price v. Hayes (1912), 151 App. Div. 561, 136 N. Y. Supp. 854; People ex rel. Friedman v. Hayes (1916), 798 HABEAS CORPUS AND THE WRIT OF CERTIORARI. 799 172 App. Div. 442, 158 N. Y. Supp. 949; People ex rel. Olsen v. Sheriff of Erie County (1916), 174 App. Div. 281, 160 N. Y. Supp. 427, affd., 222 N. Y. 25 (mem.) ; People ex rel. Bullock v. Warden of City Prison (1914), 87 Mise. 595, 150 N. Y. Supp. 24, affd., 166 App. Div. 507, 151 N. Y. Supp. 1075; People v. Lucas (1916), 159 N. Y. Supp. 218. A proceeding under the Insanity Law is one of the cases mentioned in section 2066 of the Code of Civil Procedure as “ otherwise expressly provided for by statute.” People v. Grifenhagen (1915), 154 N. Y. Supp. 965. The provisions of the Insanity Law, conferring upon one in custody as an insane person a right to a writ of habeas corpus to determine his sanity, do not prescribe the procedure in such cases, and hence it is regulated by the provisions of the Code of Civil Procedure. People ex rel. Woodbury v. Hendrick (1915), 168 App. Div. 5538, 153 N. Y. Supp. 188, affd., 215 N. Y. 339. A writ of habeas corpus to inquire into the detention of one confined in a prison under conviction and sentence is a civil, not a criminal proceeding, classified by the Code of Civil Procedure as a State writ (§ 1991), and as a civil, special proceeding (§§ 3333-3337, 3343, subd. 20) to enforce a civil right, although its purpose is to effect the release of the person from imprison- ment or custody under a criminal prosecution. People ex rel. Curtis v. Kidney (1919), 225 N. Y. 299. Subd. 2. When Writ Granted on Behalf of Persons Imprisoned. (Fiero, Spec. Pro., 3rd Ed., pp. 1227-1236.) A person confined under the final judgment of a criminal court of record cannot be discharged upon a writ of habeas corpus, un- less that court had no jurisdiction, or no power to impose the sentence inflicted. People v. Quartararo (1912), 76 Mise. 55, 133 N. Y. Supp. 985. The question of jurisdiction of the Court of General Sessions which imposed sentence upon relator is properly raised on a writ of habeas corpus. People ex rel. McKenna v. Kennedy (1912), 78 Mise, 482, 188 N. Y. Supp. 581, affd., 154 App. Div. 558, 139 N. Y. Supp. 896, 29 N. Y. Cr. 896. But the question whether a court is without jurisdiction to try a defendant for a first offense upon an indictment charging a second offense cannot 800 HABEAS CORPUS AND THE WRIT OF CERTIORARI. be raised by habeas corpus proceedings. People ex rel. Goldstein v. Clancy (1914), 163 App. Div. 614, 148 N. Y. Supp. 977. The writ of habeas corpus does not lie to question the sufficiency of an indictment valid on its face or the sufficiency of evidence before the grand jury. People ex rel. Moore v. Warden of City Prison (1912), 150 App. Div. 644, 185 N. Y. Supp. 883. Where a person has received an excessive sentence on his plea of guilty to an indictment his remedy is not a proceeding for a discharge by habeas corpus, but a motion for arrest of judgment. People v. Quartararo (1912), 76 Mise. 55, 183 N. Y. Supp. 985. Or by an appeal, when the judgment may be corrected, if wrong, by modifying the provision as to sentence. Hx parte Morris (1916), 163 N. Y. Supp. 907. One charged with crime cannot invoke the aid of a writ of habeas corpus in order to obtain a discharge from imprisonment because of a delay in prosecution. People ex rel. McGowan v. Warden of City Prison (1914), 155 App. Div. 484, 140 N. Y. Supp. 864. Whether a judge conducting the trial of a cause is a de facto judge or not may be determined in habeas corpus proceedings. People v. Hayes (1914), 86 Mise. 88, 149 N. Y. Supp. 115. After a commitment is duly issued the motives or malice of the informing witness may not be questioned on habeas corpus. People ex rel. Walleté v. Quinn (1912), 150 App. Div. 818, 135 N. Y. Supp. 477, 27 N. Y. Cr. 388. The question whether a person who has been tried under an indictment resulting in a disagreement of the jury is placed in jeopardy a second time by the trial of another indictment for the same offense may be determined on habeas corpus. People ex rel. Bullock v. Hayes (1915), 215 N. Y. 172, affg., 166 App. Div. 507, 151 N. Y. Supp. 24. The question whether a pardon granted by a governor, who at the time of granting it was under impeachment by the Assembly, is valid may be determined upon habeas corpus. People ex rel. Robin v. Hayes (1914), 163 App. Div. 725, 149 N. Y. Supp. 250. When a magistrate in the city of New York acts as a com- mitting magistrate and holds a defendant for trial in another court, the question whether the evidence before the magistrate justifies the issuance of the warrant may be tested on habeas HABEAS CORPUS AND THE WRIT OF CERTIORARI. 801 corpus. People ex rel. Conway v. Warden of 2d Dist. Prison (1917), 180 App. Div. 336, 167 N. Y. Supp. 280. But where such magistrate, instead of holding a defendant for trial in an- other court commits a defendant charged with disorderly conduct for trial before himself, he is exercising his summary jurisdiction to try a case of disorderly conduct conferred by the Consolidation Act, and his decision as to whether the facts charged constituted the offense and whether the defendant was guilty cannot be re- viewed by habeas corpus, but only by appeal. People ex rel. Conway v. Warden of 2d Dist. Prison (1917), 180 App. Div. 386, 167 N. Y. Supp. 280. Habeas corpus is not the proper remedy to challenge the juris- diction of the court committing the relator on the ground that the term was unlawfully continued. People ex rel. Friedman v. Hayes (1916), 172 App. Div. 442, 158 N. Y. Supp. 949. Although a person may have been sentenced to imprisonment for a longer period than allowed by the statute, he is not entitled to release on habeas corpus at the expiration of the legal term, where, as a matter of fact, he has received a further sentence for a different crime, the imprisonment therefor to begin at the expira- tion of the former sentence. People ex rel. Curtis v. Kidney (1918), 183 App. Div. 451. A trial judge may at any time during the trial discharge the jury and a new trial may thereafter be had when, in his opinion, some substantial reason has arisen during the course of the trial making that course necessary. If the jury has been so discharged for an inadequate reason and without the consent of the defendant, the remedy is not by habeas corpus, but by plea of former jeopardy interposed at the new trial. But after a case has been submitted, the judge can discharge the jury only in one or the other of the instances specified in section 428 of the Code of Criminal Pro- cedure, and in that case the defendant may resort for remedy either to habeas corpus or to the plea of former jeopardy. People v. Montlake (1918), 184 App. Div. 578, 172 N. Y. Supp. 102: A writ of habeas corpus must be dismissed, irrespective of the legality of a parole under which the relator has been at liberty, where it appears that he is being held by virtue of a final judg- ment of a competent tribunal of criminal jurisdiction (Code Civ. Pro., § 2032), and it does not appear that his time of service 51 802 HABEAS CORPUS AND TILE WRIT OF CERTIORARI. under said judgment has expired. People ex rel. Johnson v. Kidney (1918), 185 App. Div. 769, 173 N. Y. Supp. 388. The Corrupt Practices Act (Election Law, §§ 540-562), the object of which is to compel publicity with regard to campaign expenses and which creates a new duty of filing a statement con- cerning the expenditures of a political party, containing the name of the person to whom paid, the amount, the date, and the pur- pose of the payment, provides a complete remedy by means of summary proceedings for a violation of any of its provisions; such an offense is not one for which a defendant may be indicted, and if arrested under an indictment charging him with having violated said statute, he is entitled to his discharge, as matter of law, on habeas corpus. People ex rel. Childs v. Knott (1918), 104 Mise. 378, 172 N. Y. Supp. 249. Subd, 3. When Writ Granted to Determine Custody of Child. (Fiero, Spec. Pro., 8rd Ed., pp. 1236-1245.) Section 70 of the Domestic Relations Law is not exclusive, or the only authority for the exercise of the power of the court over the custody and possession of minor children in whose proper training and education the State, as parens patriae, has an interest. Matter of Stewart (1912), 77 Mise, 524, 137 N. Y. Supp. 202. At common law a father had the superior right to the custody of his children, and although the rule may have been modified by the Domestic Relations Law, said preference should prevail where the mother abandons the family without justification. But in all cases the welfare of the child is the primary consideration. UlI- man v. Ullman (1912), 151 App. Div. 419, 185 N. Y. Supp. 1080. The basic principle in determining the right to the custody of a child of tender years is, what is for the best interest of the child. People ex rel. Multer v. Multer (1919), 107 Mise. 58, 175 N. Y. Supp. 526. The natural claims of the parent must give way where it clearly appears that the child’s welfare requires a different disposition of its custody. Matter of Meyer (1913), 156 App. Div. 174, 141 N. Y. Supp. 123. Where a wife, upon leaving her husband without justifiable cause, takes with her their two daughters aged respectively nine and fourteen years, and persistently refuses to return though her husband repeatedly requests her so to do, and it appears that both HABEAS CORPUS AND THE WRIT OF CERTIORARI. 803 parents are equally fit custodians of the children, so far as their moral standing and affection are concerned, the husband, who had always supported his family comfortably and according to his means and station in life, will be awarded the custody of the children as against the wife, who having no means of her own, will be unable to care for and educate the children, except through the charity of her relatives. People ex rel. Snell v. Snell (1912), 77 Mise. 538, 187 N. Y. Supp. 193. Under section 70 of the Domestic Relations Law a habeas corpus proceeding will not lie by the mother of children legally adopted for permission to see them. Matter of McDevitt (1917), 101 Mise. 588, 168 N. Y. Supp. 433. Where the father, after the death of his wife, placed his child in a charitable institution as a public charge, from which it was legally adopted by others, he has not, as against the persons adopting the child, an absolute right to its custody. Ha parte Sarcona (1912), 133 N. Y. Supp. 913. Where a writ of habeas corpus issued on the relation of a mother for the purpose of testing the validity of the commitment of her children to an institution has been dismissed, the matter as to her is res adjudicata and she cannot thereafter attack an order of the Surrogate’s Court authorizing the adoption of the children by their uncle. Matter of Antononopulos (1916), 171 App. Div. 659, 157 N. Y. Supp. 587. The Supreme Court has no jurisdiction by habeas corpus to modify a judgment in an action for separation awarding the custody of a child without qualification, especially where the situa- tion of the parties has in no way changed since the entry*of the judgment. People ex rel. Hyland v. Hyland (1919), 187 App. Div. 374, 175 N. Y. Supp. 626. Subd. 4. When Writ Granted in Extradition Cases. (Fiero, Spec. Pro., 3rd Ed., pp. 1245-1248.) One arrested and held under a warrant of extradition is en- titled, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, and to show by competent evidence as a ground for his release that he is not a fugitive from justice of the demand- ing State. People ex rel. Genna v. McLaughlin (1911), 145 App. Div. 513, 130 N. Y. Supp. 458, 26 N. Y. Or. 242. 804 HABEAS CORPUS AND THE WRIT OF CERTIORARI, Habeas corpus is not the proper proceeding to try the question of a relator’s guilt or innocence of the crime charged, the proceed- ings being limited to the determination of whether the person held in custody is or is not a fugitive from justice. People ex rel. Teitelbaum v. Ryan (1918), 181 App. Div. 404, 168 N. Y. Supp. 787. The question whether the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or affidavit, certified as authentic by the governor of the State making the de- mand, is a question of law and always open on the face of the papers to judicial inquiry on an application for a discharge under awrit of habeas corpus. People ex rel. Marshall v. Moore (1915), 167 App. Div. 479, 153 N. Y. Supp. 10, affd., 217 N. Y. 632. The only question before the court on habeas corpus for the re- lease of a person alleged to be a fugitive from justice from another State, are whether the relator is unlawfully deprived of his liberty, and whether the Governor of this State in honoring the demand of a foreign State has acted without authority of law. It is not enough for the relator to show that the indictment is defective under the laws of this State; he is bound to overcome the presump- tion that the governors of the two states have performed their duties under the laws of the United States. People ex rel. Mar- shall v. Moore (1915), 167 App. Div. 479, 153 N. Y. Supp. 10. Upon a petition by a person charged with being a fugitive from justice for a writ of habeas corpus, the identity of the name of such person with the name of the person named in the rendition warrant raises a presumption that the persons are the same. People ex rel. Teitelbaum v. Ryan (1918), 181 App. Div. 404. 168 N. Y. Supp. 787. Upon the return of a writ of habeas corpus to determine the legality of the detention of one held under an extradition warrant the relator may prove an alibi to defeat the extradition. People ex rel. Genna v. McLaughlin (1911), 145 App. Div. 513, 130 N. Y. Supp. 458. A person is properly committed for extradition to another State and his writ of habeas corpus should be dismissed where it appears that he was present in the foreign State at the time he made the alleged false representations for which he was indicted, even HABEAS CORPUS AND THE WRIT OF CERTIORARI. 805 though he did not remain in the foreign jurisdiction until the con- summation of the crime. People ex rel. Goldfarb v. Gargan (1918), 181 App. Div. 410, 168 N. Y. Supp. 1027. Where a relator is held under an extradition warrant on a charge of murder, he has the right upon the return of a writ of habeas corpus to traverse the finding upon the jurisdictional question whether he was within the demanding State at the time of the commission of the alleged offense. People ex rel. Debono v. Board of Police Comrs. (1915), 89 Misc. 248, 153 N. Y. Supp. 491, 32 N. Y. Or. 499. A person held for extradition for a crime committed in another State should not be discharged on habeas corpus merely because the warrant for arrest names him as “ Morris Edelston, alias Edelstein,” while the warrant of extradition names him as Morris Edelston, and he claims that his correct name is Morris Edelstein and that he can prove an alibi. People ex rel. Edelstein v. Warden of City Prison (1912), 154 App. Div. 261, 138 N. Y. Supp. 1095, 29 N. Y. Cr. 492. On habeas corpus in extradition proceedings the presentation to the Governor of this State of a copy of a duly certified informa- tion, with the requisition of the Governor of another State demand- ing relator’s extradition, charging relator with the commission of an offense certified by such demanding Governor to be a crime in his State, is sufficient to require the surrender of the relator and the writ of habeas corpus must be dismissed. People ex rel. Currier v. Chief of Police (1916), 97 Mise. 254, 162 N. Y. Supp. 845. Subd. 5. Miscellaneous Statutory Provisions Allowing Writ. (Fiero, Spec. Pro., 8rd Ed., pp. 1249-1250.) Insanity Law, § 93. Habeas Corpus. Any one in custody as an insane person is entitled to a writ of habeas corpus, upon a proper application made by him or some friend in his behalf. Upon the return of such writ, the fact of his insanity shall be inquired into and determined. The medical history of the patient, as it appears in the case book, shall be given in evidence, and the superintendent or medical officer in charge of the institution wherein such person is held in custody, and any proper person, shall be sworn touching the mental condition of such person. Where a second or subsequent application is made for the discharge from cus- tody of the same patient, any party to the proceeding may introduce in evi- dence any testimony, in relation to the mental condition of such patient, received upon any former hearing or trial, together with all the exhibits 806 HABEAS CORPUS AND THE WRIT OF CERTIORARI. introduced in evidence upon such hearing or trial in connection with such testimony without calling the witnesses who gave such testimony, such evidence to have the same force and effect as if such witnesses had been called. Amended by L. 19138, ch. 542. Subd. 6. Habeas Corpus on Commitment for Contempt. (Fiero, Spec. Pro., 8rd Ed., pp. 1250-1252.) If an attempt is made to punish witnesses for disobedience of a void subpoena they are entitled to a remedy by habeas corpus. People ex rel. Willett v. Quinn (1912), 150 App. Div. 818, 135 N. Y. Supp. 477, 27 N. Y. Cr. 388. ARTICLE ITI. DUTY OF COURT, OFFICER, OR OTHER PERSON RELATIVE TO WRIT. (Fiero, Spec. Pro., 8rd Ed., pp. 1255-1256.) Where an action is brought to recover a penalty under section 2051 of the Code of Civil Procedure for a second arrest which is prohibited by section 2050, the complaint must negative the ex- ceptions contained in said section 2050. Sutton v. Butler (1911), 74 Mise. 251, 183 N. Y. Supp. 986, 26 N. Y. Cr. 413, affd., 151 App. Div. 894, 185 N. Y. Supp. 1145. ARTICLE IV. RETURN MUST BE MADE TO WRIT AND NOTICE OF HEARING. (Fiero, Spec. Pro., 8rd Ed., pp. 1257-1260.) Regardless of legislative provisions, a writ of habeas corpus may be made returnable in a county other than that in which the relator is restrained, though a court be in session in that county. People ex rel. Robin v. Hayes (1913), 82 Mise. 165, 143 N.Y. Supp. 325, affd., 163 App. Div. 725, 149 N. Y. Supp. 250. ARTICLE V. PROCEEDINGS ON RETURN. (Fiero, Spee. Pro., 8rd Ed., pp. 1261-1275.) Supp. 1. Power of court or judge to inquire into cause of detention. 2. Traverse to return and its effect. 3. When petitioner remanded. 4. When petitioner discharged. HABEAS CORPUS AND THE WRIT OF CERTIORARI. 807 Subd. 1. Power of Court or Judge to Inquire into Cause of Detention. (Fiero, Spec. Pro., 3rd Ed., pp. 1261-1265.) The court on a writ of habeas corpus in extradition proceedings will not go into the sufficiency of the indictment or the merits of the defense which are matters for the foreign court. People ex rel. Goldfarb v. Gargan (1918), 181 App. Div. 410, 168 N. Y. Supp. 1027. A writ of habeas corpus cannot perform the functions of an appeal from a judgment of conviction; the court can only inquire into the question of jurisdiction and if it appears that the power existed to pronounce the judgment, the writ must be dismissed. People ex rel. Hubert v. Kaiser (1912), 206 N. Y. 46, affg., 150 App. Div. 541, 185 N. Y. Supp. 883. The court may look back of the warrant to see if the facts stated in the depositions of the prosecutor conferred jurisdiction upun the magistrate to issue the warrant. People ex rel. Wilson v. Warden of City Prison (1912), 151 App. Div. 108, 185 N. Y. Supp. 841; People ex rel. Burke v. McLaughlin (1912), 77 Mise. 18, 186 N. Y. Supp. 122, affd., 152 App. Div. 912, 187 N. Y. Supp. 1116, which is affd., 207 N. Y. 769. Where the magistrate who pronounced final judgment on a person for disorderly conduct had jurisdiction of the person and of the offense and had power to impose the sentence under which the relator is held, the matter is determined as a final judg- ment so far as relator under the writ of habeas corpus is concerned, and the court before which the writ is returnable is precluded from reviewing the evidence on which the judgment rests. Cohen v. Warden of Workhouse (1913), 150 N. Y. Supp. 596. In all cases of habeas corpus, the court will look into the depo- sitions and the testimony to ascertain as to whether or not a crime has been proven against the defendant, and as to whether there is probable cause to believe that he committed the crime; and if there is not sufficient evidence as to the person who com- mitted it, it is the duty of the court to discharge. People v. Gage (1914), 149 N. Y. Supp. 43. Subd. 2. Traverse to Return and Its Effect. (Fiero, Spec. Pro., 8rd Ed., pp. 1265-1268.) The provision that a prisoner produced upon the return to a writ of habeas corpus may controvert the return, does not au- 808 HABEAS CORPUS AND THE WRIT OF CERTIORARI. thorize the Special Term to accept as true statements of fact con- tained in his answer to the return without evidence to support them. People ex rel. Moore v. Holmes (1912), 151 App. Div. 257, 135 N. Y. Supp. 467. There is ample precedent for the impaneling of a jury to aid in trying the issues of fact raised upon the traverse to the return in a habeas corpus proceeding. People v. Grifenhagen (1915), 154 N. Y. Supp. 965. The command of section 2039 of the Code of Civil Procedure for a “summary” way of procedure, means that it shall be prompt and without unreasonable and unnecessary delay, but whether the question of fact as to the sanity of the prisoner should be submitted to the jury for the aid of the court, is within the discretion of the justice to be decided by the circum- stances of the particular case. People ex rel. Woodbury v. Hend- rick (1915), 215 N. Y. 339. Where an order of adoption recited all the jurisdictional facts necessary to its validity and that it appeared to the satisfaction of the county judge “that said minor has been abandoned by its parents,” an allegation in the traverse to the return to a writ of habeas corpus that the mother had no notice of the proceeding raises a question of law affecting the validity of the order of adoption and it is error for the Special Term to dismiss the writ. Matter of Livingston (1911), 151 App. Div. 1, 185 N. Y. Supp. 328, revg., 74 Mise. 494, 134 N. Y. Supp. 148. Proceedings hav- ing been instituted in the Supreme Court, by means of a writ of habeas corpus, to recover from the guardian custody of a child, upon the return and traverse to which other facts were alleged than those testified to on a previous hearing, the Special Term should have taken evidence upon the issues of fact presented in- stead of sustaining the writ upon the papers. Matter of Lee (1917), 220 N. Y. 532. Section 2039 of the Code of Civil Procedure and section 93 of the Insanity Law are mutually exclusive. People v. Grifenhagen (1915), 154 N. Y. Supp. 965. Subd. 3. When Petitioner Remanded. (Fiero, Spec. Pro., 3rd Ed., pp. 1268-1270.) Section 2032 of the Code of Civil Procedure is not unconstitu- tional. People ex rel. Hubert v. Kaiser (1912), 150 App. Div. TABEAS CORPUS AND THE WRIT OF CERTIORARI. 809 541, 185 N. Y. Supp. 274, affd., 206 N. Y. 46; see People ex rel. Goldstein v. Clancy (1914), 163 App. Div. 614, 616, 148 N. Y. Supp. 977. Where it does not appear upon whom a writ of habeas corpus was served, or by whom the prisoner was produced before the Supreme Court, or that any notice of the proceeding was given to a person interested in continuing the imprisonment, or that any one made formal return to the writ, as required by the statute, the court has no jurisdiction to direct the discharge of the prisoner. People v. Warden Kings County Jail (1914), 160 App. Div. 408, 145 N. Y. Supp. 1064. Where a petition for a writ of habeas corpus shows that relator was duly convicted of murder in the second degree and duly sentenced to life imprisonment in a State prison from which he was transferred to a State hospital as an insane person, the writ must be dismissed on the ground that on the face of the petition it appeared that relator was detained by virtue of a final judgment of a competent tribunal of criminal jurisdiction. People ex rel. Stephani v. North (1915), 91 Misc. 616, 155 N. Y. Supp. 595. A judgment convicting a defendant of petit larceny not charged as a first offense is not illegal and excessive because it includes a provision that he be imprisoned “ at hard labor,” and cannot be reviewed on habeas corpus. People ex rel. Gainance v. Platt (1911), 148 App. Div. 579, 182 N. Y. Supp. 939. Where, upon a verified complaint made to a city judge charging the relator with abandonment of his minor children, he was arrested upon a warrant sufficient upon its face, the question of the relator’s guilt or innocence of the offense charged cannot be determined on habeas corpus and he must be remanded to custody. People ex rel. Armstrong v. Quigley (1912), 75 Mise. 151, 184 N. Y. Supp. 953. Subd. 4. When Petitioner Discharged. (Fiero, Spec. Pro., 8rd Ed., pp. 1270-1275.) Where a prisoner is held under a judgment of a court made without authority of law, the proper tribunal will, upon habeas corpus, look into the record so far as to ascertain the fact, and if it be found to be so, will discharge the prisoner. People ex rel. 810 HABEAS CORPUS AND THE WRIT OF CERTIORARI. Stumpf v. Craig (1918), 79 Misc. 98, 140 N. Y. Supp. 652, 29 N.Y, Cr. 29. Where the return to a writ of habeas corpus sued out by one held under a warrant for extradition is traversed by a denial of the identity of the relator with the person named in the indict- ment on the ground that the relator was not in the demanding State at the time of the commission of the crime, and therefore, was not a fugitive from justice, and the preponderance of evidence is on the side of the relator, the writ will be sustained and the relator released. People ex rel. Fuchs v. Police Commissioner (1914), 83 Mise. 643, 146 N. Y. Supp. 781. Where the warrant of commitment is the sole authority for the confinement which is being inquired into in a habeas corpus pro- ceeding, and where it specifies as the crime with which the accused is charged an offense which is not supported by the evidence, and wholly fails to specify the crime which the evidence does tend to establish, it is not simply “ irregular” and may not be made the basis for holding the accused on account of the latter offense, under the provisions of section 2035 of the Code of Civil Pro- cedure. People ex rel. Howey v. Warden, ete. (1913), 207 N. Y. 554. ARTICLE VI. MISCELLANEOUS MATTERS OF PRACTICE. (Fiero, Spec. Pro., 3rd Ed., pp. 1275-1277.) Where a writ of habeas corpus awarding custody of a child of tender years to her father is granted solely upon affidavits so con- flicting that it is impossible to determine whether the father is a proper person to have the custody, or whether it is to the best interest of the infant, the order will be reversed and the matter sent to a referee to take proof and report to the Special Term with an opinion. Matter of Meyer (1911), 146 App. Div. 626, 131 N. Y. Supp. 380. ARTICLE VII. PROCEEDINGS WHEN PRISONER DISCHARGED AND EFFECT OF DISCHARGE. (Fiero, Spec. Pro., 3rd Ed., pp. 1277-1278.) The words “ for the same cause” in section 2050 of the Code of Civil Procedure mean an imprisonment on the same informa- HABEAS CORPUS AND THE WRIT OF CERTIORARI. 811 tion and not imprisonment under a new information followed by a lawful warrant, the sufficiency of both of which stands unchal- lenged. Sutton v. Butler (1911), 74 Mise. 251, 133 N. Y. Supp. 936, affd., 151 App. Div. 894, 185 N. Y. Supp. 1145. An order in habeas corpus proceedings discharging a person committed to a State hospital for the insane, and directing that it may be vacated and the person recommitted without a further hearing in case he violates conditions therein, prohibiting him from going into the State of Massachusetts, to which he consented, is erroneous and illegal. People ex rel. Savage v. Hutchins (1917), 219 N. Y. 200. ARTICLE IX. WHEN WARRANT OF ATTACHMENT ISSUES. (Fiero, Spec. Pro., 8rd Ed., pp. 1280-1281.) An ex parte order adjudging a defendant guilty of criminal contempt in wilfully disobeying a writ of habeas corpus is un- authorized by section 2028 of the Code of Civil Procedure. People ex rel. Bishop v. Bishop (1918), 184 App. Div. 227, 171 N.Y. Supp. 562. ARTICLE X. CERTIORARI TO INQUIRE INTO CAUSE OF DETENTION. (Fiero, Spec. Pro., 8rd Ed., pp. 1281-1285.) Cope Cry. Pro., § 2043. When discharge to be granted; when proceedings to cease. Code Civ. Pro., § 2043. When discharge to be granted; when proceedings to cease. If it appears, that the prisoner is unlawfully imprisoned or restrained in his liberty, the court or judge must make a final order, discharging him forthwith. If it appears that he is lawfully imprisoned or detained, and is not entitled to be bailed, the court or judge must make a final order, dismissing the proceedings. A final order made in a proceeding brought on behalf of a person imprisoned or detained in any of the state hospitals mentioned in section forty of the insanity law or in the Matteawan State hospital or in the Dannemora hospital for insane convicts, shall be con- clusive evidence, upon a hearing of any subsequent proceeding involving the detention of the same person, of all the facts determined by the court, unless such final order shall otherwise specify. Amended by L. 1918, ch. 544. 812 HABEAS CORPUS AND THE WRIT OF CERTIORARI. ARTICLE XI. APPEAL. (Fiero, Spec. Pro., 3rd Ed., pp. 1285-1290.) The first sentence of section 2058 of the Code of Civil Pro- cedure gives the people the unqualified right to appeal from a final order discharging the prisoner: The succeeding sentence is permissive and was intended to authorize an appeal before bail is given, where the discharge, instead of being absolute, is con- ditional, and to provide that in such case an appeal by the people should not stay the discharge of the prisoner upon giving bail. People ex rel. Hubert v. Kaiser (1912), 206 N. Y. 46. This section is not invalid on the theory that it suspends the privilege of the writ of habeas corpus contrary to the provisions of the State and Federal constitutions. People ex rel. Hubert v. Kaiser (1912), 150 App. Div. 541, 135 N. Y. Supp. 274, affd., 206 N. Y. 46. An appeal from an order discharging the relator in habeas corpus proceedings must be taken in the name of the people or it will be dismissed. People v. Gittens (1913), 209 N. Y. 527. A prisoner held under conviction of a court of competent juris- diction and is serving out his sentence under such judgment, does not stand charged with any offense under sections 2060 or 2061 of the Code of Civil Procedure, and the court has no power to admit the prisoner to bail pending an appeal. People ex rel. Hubert v. Kaiser (1912), 150 App. Div. 915, 185 N. Y. Supp. 694. HABITUAL DRUNKARD, SALE OF REAL ESTATE OF. See Inrant, Save or Rear Estate OF. HABITUAL DRUNKARD, APPOINTMENT OF COMMITTEE OF. See APPoIntTMENT OF CoMMITTEE FoR LuNatic, Etc. IDIOT, SALE OF REAL ESTATE OF. See Inrant, Save or Rear Esrarr OF. IDIOT, APPOINTMENT OF COMMITTEE OF. See Commirrer or Lunatic, Ere. INDIVIDUAL, CHANGE OF NAME OF. See Name or Inprvipuat, Procerpinas To CHANGE. INFANT, LUNATIC, IDIOT OR HABITUAL DRUNK- ARD, SALE OF REAL ESTATE OF. (Fiero, Spec. Pro., 8rd Ed., pp. 1817-1347.) Art. II. Application to dispose of real property and petition. III. Appointing of guardian, and bond. VI. Proceeds of sale, how distributed. ARTICLE II. APPLICATION TO DISPOSE OF REAL PROPERTY AND PETITION. (Fiero, Spec. Pro., 8rd Ed., pp. 1321-1330.) Supp, 2. Petition, by whom made, and contents. Subd. 2. Petition, by Whom Made, and Contents. (Fiero, Spec. Pro., 3rd Ed., pp. 1827-1330.) A petition for the sale of property of an infant, which gives only the assessed value and is silent as to the real or market value, is insufficient. Title Guarantee & Trust Co. v. Rudershausen (1917), 164 N. Y. Supp. 15. A petition for leave to sell the undivided interest of an incom- petent person in land to avoid an action of partition on the part of cotenants, or for the dower of a widow therein, is not defective because of failure to state the particulars and value of the real and personal property, and the amount of the income of the in- competent person, the disposition made of her personal property and an account of the debts or demands, if any, existing against her estate. When enough is shown in the petition to answer the statutory requirements, the adequacy or inadequacy of the reasons for the sale must be determined by the court that hears the applica- tion. Harrison v. Higgins (1916), 218 N. Y. 556. ARTICLE ITI. APPOINTING OF GUARDIAN, AND BOND. (Fiero, Spec. Pro., 8rd Ed., pp. 1830-1333.) Cope Civ. Pro., § 2351. Bond of committee of lunatic, ete. Code Civ. Pro., § 2351. Bond of committee of lunatic, etc. An application to sell, mortgage, release, or lease real property, or an interest in real property, of a lunatic ,idiot or habitual drunkard, cannot be 813 814 INFANT, LUNATIC, IDIOT OR HABITUAL DRUNKARD, granted, unless « committee of his property has been appointed. Upon such an application, if it is made by the committee, the court must make an order, directing him to file with the clerk, a bond, with either indi- vidual or corporate surety, approved by the court as to form, amount and sufficiency of surety, conditioned for the faithful discharge of his trust; for the paying over and investing of, and accounting for, all moneys received by him in the special proceeding, according to the direction of any court having authority to give directions in the premises; and for the observance of the directions of the court, in relation to the trust. If the application is made by any other person, an order must be made thereupon, requiring the committee to show cause why he should not file such a bond. If, after hearing the committee, the court is of the opinion, that there is a probable cause for granting the application, it may make an order, requiring the committee to file such a bond; or, if the committee so elects, or fails to file the bond as directed in the order, it may appoint a suitable person to be the special guardian of the incompetent person, with respect to the pro- ceedings, who must thereupon file such a bond. Where an application is made to release an inchoate right of dower, application must be made by the husband of the lunatic, idiot or habitual drunkard and may be made before or after a committee has been appointed, except that application may be made by the committee of the property of the lunatic, idiot, or hab- itual drunkard in any case where, at the time of the application, the prop- erty to which the inchoate right of dower attaches has already been sold by the husband and the wife has not joined in the conveyance or otherwise released her inchoate right of dower. When the application is made by the husband, the court may appoint him special guardian, and he must file a bond as herein provided. Amended by L. 1915, ch. 241. The court may, when making an order of reference, also approve the guardian’s bond, where the order appointing the special guardian and fixing his bond also appointed the referee. Title Guarantee & Trust Co. v. Rudershausen (1917), 164 N. Y. Supp. 15. Where a special guardian furnished a bond to infant petitioners. whose individual shares were less than $1,000 each, executed by a surety company in the sum of $12,000, as authorized and ap- proved by the court, for which he paid the sum of $46 as a premium, it was held, that he should be allowed to deduct and retain that amount under the express authority of section 3320 of the Code of Civil Procedure, which must be held to be para- mount to Rule 58 of the General Rules of Practice. Matter of Molinari (1913), 82 Mise. 663, 144 N. Y. Supp. 217. SALE OF REAL ESTATE OF. 815 ARTICLE VI. PROCEEDS OF SALE, HOW DISTRIBUTED. (Fiero, Spec. Pro., 3rd Ed., pp. 1339-1347.) Cope Civ. Pro., § 2361. Disposition of proceeds; accounting. Code Civ. Pro., § 2361. Disposition of proceeds; accounting. The court must, by order, direct the disposition of the proceeds of such a sale, mortgage, release or lease. It must direct the investment of any por- tion thereof belonging to the infant or incompetent person, which is not needed for the payment of debts, or the safe-keeping, or the immediate maintenance and education, of himself or his family, or for the preservation or improvement of his real property or his interest in real property. It must require a report, under oath, of the disposition and investment thereof, tv be made as soon as practicable, and must compel periodical accounts to be rendered thereafter by each person, who is intrusted with the proceeds, or any part thereof. Where an inchoate right of dower is released as prescribed in this title and such release is to accompany a sale by the husband of the property to which the inchoate right of dower attaches, the court shall make an order requiring one-third of the amount realized on the sale of the prop- erty to which the inchoate right of dower attached to be invested by the special guardian, or paid into the court to be held for the benefit of the husband during his life and upon his death for the benefit of the wife during her life, or the court may direct said amounts to be paid to the husband upon his giving a bond in the penalty of at least double the amount so received for such release, with at least two sureties, who shall justify in double the amount of such penalty, conditioned for the repayment as the court shall direct by his executors or administrators of such amount upon the death of the husband. Where an inchoate right of dower is released as prescribed in this title, and, at the time of the application, of the property to which the inchoate right of dower attaches has already been sold by the husband, and the wife has not joined in the conveyance or otherwise released her inchoate right of dower, the court shall make an order that, as the con- sideration for the release, or as part of the consideration therefor, there be paid to the special guardian or into the court an amount to be fixed by the court as equal to one-third of the fair market value of the property, to be invested by the special guardian or held by the court for the benefit of the person making such payment during the life of the husband, and upon his death for the benefit of the wife during her life, and upon her death to be returned to the person making such payment or to his executors, administra- tors or assigns; or in lieu of such payment the court may allow a bond to be given in the penalty of at least double the amount so fixed as equal to one-third of the fair market value of the property, with at least two sureties, who shall justify in double the amount of such penalty, conditioned for the payment as the court shall direct, upon the death of the husband leaving the wife surviving, of the said sum so fixed as equal to one-third of the fair value of the property, to be held for the benefit of the wife during her life and upon her death to be returned to the person giving such bond or his executors, administrators or assigns. In case by any contingency, 816 INFANT, LUNATIC, IDIOT OR HABITUAL DRUNKARD, ETC. infants not in being may thereafter become possessed of any interest in said premises so sold, mortgaged or leased, the court, in case of a sale, shall cause the proceeds of the sale, after paying the costs and expenses of the same, to be placed at interest for the benefit of the persons who are, or who may ultimately be entitled to the same, and shall not authorize the distribution of the same in advance of said contingency, except upon a petition of some person entitled thereto, and upon filing a bond in such penalty as the court shall direct, with two or more sureties approved by the court, and con- ditioned that in case of any contingency by which any infant not then in being shall thereafter become entitled to any of the proceeds of the sale, that said petitioner will pay to said person or persons his or their proportion- ate share of the money so paid over to said petitioner; and in the case of the mortgaging of said real estate the proceeds of the same, after paying costs and expenses, shall be paid out and disbursed under the direction of the court only for the purpose of paying lawful charges thereon, or repair- ing, improving, building upon or otherwise enhancing in value any real estate so mortgaged as aforesaid. In the case of an infant residing without the state, and having in the state or country where he or she resides a general guardian or person duly appointed under the laws of such state or country, to the control and entitled, by the laws of such state or country, to the custody of the money of said infant, the court, upon satisfactory proof of such facts and the sufficiency of the bond or security given by such general guardian or person in such state or country by the certificate of a judge of a court of record of such state or country, or otherwise, may direct that the portion of such infant arising upon such sale shall be paid over to such general guardian or person. Where the portion of the proceeds arising upon such sale which belongs to an infant, residing within or without the state, does not exceed one hundred and fifty dollars, and the father or mother, or both, of such infant be living, the court may direct that the same be paid over, for the use and benefit of such infant, to such father or mother. Amended by L. 1915, ch. 629; L. 1919, ch. 274. The sections of the Code of Civil Procedure regarding proceed- ings for the sale of the real property of an infant are silent upon the costs allowable in such proceedings and they are governed by Rule 58 of the General Rules of Practice. Matter of Molinari (1913), 82 Mise. 668, 144 N. Y. Supp. 217. Where, by the re- port of the special guardian in proceedings for the sale of the undivided interests of several infants in certain real estate, it ap- pears that the net value of the interest of each infant is less than $1,000, the whole costs, including disbursements, cannot exceed $25, and referee’s fees cannot exceed $10. Matter of Molinari (1913), 82 Mise. 663, 144 N. Y. Supp. 217. IMPRISONMENT, DISCHARGE OF DEBTOR FROM. See Desror anp Crepiror Law. INSOLVENT DEBTOR. See Desror anp Crepitor Law. LEGISLATIVE CONTEMPTS. See ContTEMPTS. LIEN OF ATTORNEYS. See ATTORNEYS. LUNATIC, APPOINTMENT OF COMMITTEE FOR. See Commirrer, APPporntMENT or, For Lunatic, Erc. LUNATICS, SALE OF REAL ESTATE OF, See Inrant, Sate or Reat Estate Or. MANDAMUS. (Fiero, Spec. Pro., 3rd Ed., pp. 1348-1539.) Art. I. Nature of the writ. II, When and against whom writ allowed. III. By what court writ may be granted. IV. Parties. V. The petition or affidavit on the part of the relator. VI. Alternative and peremptory writs defined and explained. VII. Peremptory writ and proceedings thereon. VIII. Alternative writ and proceedings thereon. X. The return. . XI. Defenses to mandamus. XII. Matters of practice. XIII. Stay of proceedings, damages and fines. XVI. Appeals. ARTICLE I. NATURE OF THE WRIT. (Fiero, Spec. Pro., 3rd Ed., pp. 1350-1365.) Supp, 2. Scope and purpose of the writ. 3. Must be a clear legal right to the writ. 4. Will not lie to try title to public office. 5. Will not lie to control official discretion. 52 817 818 MANDAMUS. Subd. 2. Scope and Purpose of the Writ. (Fiero, Spec. Pro., 3rd Ed., pp. 1352-1356.) The writ of mandamus is not always demandable as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court. The writ will be granted to prevent failure of justice, but never to promote manifest injustice. It is a remedial process and may be used to remedy a wrong, but not to promote one; to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public or private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands, and he cannot invoke this extraordinary remedy to gain an advantage which would not be accorded him in a court of law or equity. People ex rel. B. D. Pierce, Jr., Co. v. Sohmer (1915), 167 App. Div. 437, 153 N. Y. Supp. 195. The Legislature may provide a remedy by mandamus so long as the constitutional guaranty of due process of law is observed. Public Service Commission v. New York R. Co. (1912), 77 Misc. 487, 136 N. Y. Supp. 720. Mandamus does not lie to discover dishonesty and fraud, but merely to compel the performance of strictly legal duties, and if there is any doubt as to the relator’s right to the writ it should not issue. People ex rel. Heinrich v. Travis (1916), 175 App. Div. 721, 161 N. Y. Supp. 860. Mandamus will not lie when the whole issue has become academic. Matter of Ovens v. Marks (1916), 173 App. Div. 138, 159 N. Y. Supp. 424. The writ of mandamus is prerogative in character issuing only in the discretion of the court and will not be granted to compel the performance of a futile act. People ex rel. Lindgren v. McGuire (1912), 151 App. Div. 413, 136 N. Y. Supp. 88. A peremptory writ of mandamus is not the appropriate remedy to compel performance of a continuing duty or duty arising in the future. Matter of Public Service Commission v. Interborough Rapid Transit Co. (1916), 172 App. Div. 324, 158 N. Y. Supp. 480. A writ of mandamus is issued in the discretion of the court, and MANDAMUS. 819 will never be granted to compel the performance of an act which will work a public or private wrong. A relator cannot invoke this extraordinary remedy to gain an advantage which would not be accorded him in a court of law or equity. People cx rel. B. D, Pierce, Jr., Co. v. Sohmer (1915), 167 App. Div. 437, 153 N. Y. Supp. 195. Where the purpose of a proceeding is not to compel an official to do something that he ought to do but to prevent him from doing something that he ought not to do, the remedy by mandamus is not available. Southern Leasing Co. v. Williams (1916), 96 Mise. 358, 160 N. Y. Supp. 440. However, if mandamus is the only remedy available, the fact that it seeks to prevent the doing of a ministerial act and not to compel its performance does not prevent the issuance of the writ. People ex rel. Conklin v. Boyle (1917), 98 Mise. 364, 163 N. Y. Supp. 72, affd., 178 App. Div. 908, 164 N. Y. Supp. 1107. Where a public officer announces that he will not comply with the requirements of a statute, mandamus lies to compel him to do so. People ex rel. Hotchkiss v. Smith (1912), 152 App. Div. 514, 187 N. Y. Supp. 387, affd., 206 N. Y. 231. Where a number of persons are similarly situated the court will not require separate mandamus proceedings to be instituted. So held, where the relief asked by the relator was that an eligible civil service list containing her name be in effect re-established by the vacation of an order revealing the same. People ex rrl. Fin- negan Vv. McBride (1918), 185 App. Div. 482, 173 N. Y. Supp. 43, Subd. 3. Must Be a Clear Legal Right to the Writ. (Fiero, Spec. Pro., 8rd Ed., pp. 1356-1360.) Upon an application for a writ of mandamus, the relator is always bound to show that his legal right to the performance of the particular act of which performance is sought to be compelled is clear and complete. People ex rel. McDermott v. Board of Listimate (1911), 146 App. Div. 515, 181 N. Y. Supp. 604; People ex rel. Title Guarantee & Trust Co. v. Ruoff (1913), 159 App. Div. 819, 145 N. Y. Supp. 80; People ex rel. Elmira Advertiser Assn. v. Gorman (1915), 169 App. Div. 891, 155 N. Y. Supp. 727; Matter of Brooklyn Improvement Co. v. Pounds (1916), 174 App. Div. 448, 161 N. Y. Supp. 150; People ex 820. MANDAMUS. rel. Mehlin & Sons Piano Co. v. Lauer (1913), 80 Mise. 438, 141 N. Y. Supp. 296; Matter of Hurlbut (1915), 88 Misc. 679, 152 N. Y. Supp. 426; People ex rel. Clements v. Williams (1917), 100 Misc. 569, 166 N. Y. Supp. 560; Public Service Com. v., Richmond L. & R. Co. (1917), 163 N. Y. Supp. 64. The mere existence of an undisputed legal right, although necessary to the granting of a writ of mandamus, is not of itself sufficient to require the issuance of the writ, for that rests in the sound judicial discretion of the court. People ex rel. Britton v. Am. Press Assoc. (1912), 148 App. Div. 651, 183 N. Y. Supp. 216. It cannot be said that a right is clear where it involves the validity of a statute or ordinance, the authority to enact which depends upon the determination of a legislative body with respect to a question of fact. Matter of Stubbe v. Adamson (1916), 173 App. Div. 305, 159 N. Y. Supp. 751, affd., 220 N. Y. 459. Although under the Public Service Commissions Law, manda- mus may be an appropriate process for the purpose of having violations or threatened violations, of anything required of a common carrier by law or order of the commission stopped and prevented, where the only failures of the carrier to obey the order of the commission were at specified hours on two days named, each about two months before the proceeding was commenced, there is no such clear legal right to the writ shown as to make the issuing of the mandamus imperative on the court. Matter of Public Service Com. v. I. R. T. Co. (1916), 219 N. Y. 355. The court in its discretion may refuse a peremptory writ of mandamus when to grant it would be inimical to public interest. Matter of Burke v. Connolly (1912), 76 Mise. 337, 185 N. Y. Supp. 179. Mandamus will not lie to compel a public officer to perform a duty not imposed upon him by law. People ex rel. Jones v. Thompson (1911), 147 App. Div. 150, 182 N. Y. Supp. 215; People ex rel. Kelly v. Dooley (1915), 169 App. Div. 423, 155 N. Y. Supp. 326. Where the duty to perform an act depends solely on whether a statute is unconstitutional and void, the question may be deter- mined on a petition for a writ of mandamus. People ex rel. Ferguson v. Vroman (1917), 101 Mise. 233, 166 N. Y. Supp. 923. MANDAMUS. 821 Where relator, a volunteer fireman, was suspended as foreman in the bureau of highways, a classified civil service position, pend- ing the disposition of charges against him for forgery and grand larceny, and after his acquittal from them and upon application for peremptory writ of mandamus for reinstatement, opposing affidavits set forth corrupt practices in public service, the writ will be refused. Matter of Burke v. Connolly (1912), 76 Mise. 337, 185 N. Y. Supp. 179. Where the defendant may amply protect his rights by the ordinary procedure in the criminal courts the writ of mandamus will not be granted to compel a county clerk to allow an inspec- tion of the indictment. Matter of Haydorn v. Carroll (1918), 184 App. Div. 151. Subd. 4. Will Not Lie to Try Title to Public Office. (Fiero, Spec. Pro., 3rd Ed., pp. 1860-1362.) Where the question of title to an office turns upon the construc- tion of statutory provisions which are not entirely clear and unambiguous, the right to hold the office may not be determined in a mandamus proceeding. People ex rel. Woodill v. Tighe (1911), 145 App. Div. 606, 180 N. Y. Supp. 402, affd., 206 N. Y. 740. Subd. 5. Will Not Lie to Control Official Discretion. (Fiero, Spec. Pro., 3rd Ed., pp. 1363-1365.) The general rule is that mandamus will not lie to review the determination of public boards or officers in matters involving the exercise of discretion or judgment, if they have proceeded within their jurisdiction, and in substantial compliance with the forms of law. People v. Board of Education (1914), 212 N .Y. 463, affg., 160 App. Div. 557, 145 N. Y. Supp. 853; People ex rel. Kelly v. Dooley (1915), 169 App. Div. 423, 155 N. Y. Supp. 326; People ex rel. Elmira Advertiser Assn. v. Gorham (1915), 169 App. Div. 891, 155 N. Y. Supp. 727; Kvzesel v. Crain (1905), 166 N. Y. Supp. 456; People ex rel. Krekler v. Butler (1908), 166 N. Y. Supp. 467. Where a city official removes an employee afer due service of notice of charges against him and an opportunity to explain, the BL lo ko MANDAMUS. court will not review, in a mandamus proceeding, the action of the official and determine whether he ought to have been satisfied with the explanation offered. People ex rel. Meeks v. Drummond (1913), 156 App. Div. 926, 141 N. Y. Supp. 315, affd., 210 N.Y. 624. Under the Code of Ordinances of the city of New York, motion picture theatres must have a license issued by the commissioner of licenses, and unless there is some error of law in his proceedings or his refusal to grant a license is capricious, arbitrary and unreasonable, his judgment is final, and a mandamus will not lie to compel him to grant an application to operate such a theatre. Matter of Ormsby v. Bell (1916), 218 N. Y. 212. ARTICLE II. WHEN AND AGAINST WHOM WRIT ALLOWED. (Fiero, Spec. Pro., 3rd Ed., pp. 1365-1429.) Supp. 1. When granted against state officers. . When granted against county officers. . When granted against town officers. . When granted against board of education. When issued to municipal board and officers. . When granted to compel or control action by inferior tribunals. . When granted under civil service law. . When granted in matters relating to taxation. . When granted against private corporations and associations. HOD MON MW NH Be Subd. 1. When Granted Against State Officers. (Fiero, Spec. Pro., 8rd Ed., pp. 1366-1369.) The retirement of a commissioned officer because of age limit under the military law is not a removal from office or an infringe- ment of constitutional rights and he is not entitled to a peremptory writ of mandamus to compel his reinstatement. Matter of Kirby (1912), 76 Mise. 318, 184 N. Y. Supp. 905. A manufacturer of a fertilizer is not entitled to a writ of mandamus requiring the Commissioner of Agriculture to issue a certificate under section 222 of the Agricultural Law, where the moving papers are absolutely silent as to whether or not the material will enrich the soil, and the opposing affidavits tend strongly to show that it is not efficient in the production of crops. MANDAMUS. 8238 Matter of National Stonemeal Co. v. Wilson (1917), 181 App. Div. 236, 168 N. Y. Supp. 241. While mandamus lies to compel the Comptroller to act, it does not lie to direct him how to act, nor will the court instruct him in advance as to how he shall perform his duties. People ew rel. Heimrich v. Travis (1916), 175 App. Div. 721, 161 N. Y. Supp. 860. Peremptory mandamus will issue requiring the State Comptroller to either admit or reject claims for refund of moneys paid for stock transfer tax stamps affixed to stock certificates under an unconstitutional law. People ex rel. Noyes v. Sohmer (1913), 81 Mise. 522, 143 N. Y. Supp. 475, affd., 159 App. Div. 929, 143 N. Y. Supp. 1138. An audit is not a remedy to recover money, and the court will not compel the State Comptroller to reaudit the expenditures appointed under a special statute, when, being the auditing officer, he is accused of participating in the alleged illegal expenditure, for the court will not compel him to be a judge in his own case. People ex rel. Heinrich v. Travis (1916), 175 App. Div. 721, 161 N. Y. Supp. 860. Subd. 2. When Granted Against County Officers. (Fiero, Spec. Pro., 8rd Ed., pp. 1370-1376.) If a board of supervisors refuses to act upon or allow or dis- allow a claim, the remedy of the claimant is by a writ of manda- mus. Matter of Equitable Trust Co. v. Hamilton (1917), 177 App. Div. 390, 164 N. Y. Supp. 58. The rejection of a claim by the board of supervisors of a county, on the ground that the county is not liable therefor, may be reviewed by mandamus as well as by certiorari. Matter of Schenectady Illuminating Co. (1915), 88 Mise. 634, 151 N. Y. Supp. 425. A writ of manda- mus may issue to compel a board of supervisors to levy a tax on towns for their respective proportion of the cost of maintenance of State roads. People ex rel. Carlisle v. Supervisors of Onondaga (1916), 217 N. Y. 424. Although certiorari will not lie to review the action of the board of supervisors in making an improper designation of a newspaper to publish the Session Laws, manda- mus may lie to compel them to perform their official duty. People ex rel. Guernsey v. Somers (1912), 153 App. Div. 623, 188 N. Y. Supp. 1136, affd., 208 N. Y. 621. The secretary of a county committee of a political party can- 824 MANDAMUS. not by mandamus compel a board of supervisors to appoint as an election commissioner one of the persons certified by the com- mittee to the supervisors under section 194 of the Election Law. People ex rel. Mullarkey v. Supervisors of Montgomery (1917), 180 App. Div. 125, 167 N. Y. Supp. 323. Where a board of supervisors proceeding under the Conserva- tion Law has levied the sum claimed by the Conservation Com- mission to be due from the town for the expenditures of the Commission in fighting fires in said town, and such money has been duly collected and paid over to the supervisor, he may be com- pelled by a peremptory writ of mandamus, to pay over such moneys to the Conservation Commission. Matter of Attorney- General v. Taubenkeimer (1917), 178 App. Div. 321, 164 N. Y. Supp. 904. Where a county clerk has been advised by the State Board of Tax Commissioners that a certain mortgage is taxable and such information has also been communicated to the mortgagee, a peremptory writ of mandamus should not be issued to compel the county clerk to record a certificate of satisfaction and discharge the mortgage, especially where the State Board of Tax Commis- sioners are not made parties. People ex rel. Title Guarantee & Trust Co. v. Ruoff (1918), 159 App. Div. 819, 145 N. Y. Supp. 80. Subd. 3. When Granted Against Town Officers. (Fiero, Spec. Pro., 8rd Ed., pp. 1376-1380.) Mandamus will lie to compel a town board to meet with the town superintendent of highways to divide road funds pursuant to section 105 of the Highway Law. People ex rel. Dare v. Howell (1916), 160 N. Y. Supp. 959. Mandamus proper remedy to compel retaxation of fire district. Fabric Fire Hose Co. v. Town of Whitestown (1919), 187 App. Div. 118, 175 N. Y. Supp. 191. After a board of town auditors has judicially passed upon the merits of a claim and disallowed it, the claimant’s remedy is by appeal and not by mandamus. People ex rel. Anderson v. Snedeker (1912), 75 Mise. 194, 182 N. Y. Supp. 765. For an alleged breach of contract made by district water com- missioners, or for failure to pay any debt incurred by them in their official name and capacity, the writ of mandamus is the only MANDAMUS. 825 appropriate remedy to compel action on their part. People ex rel. Farley v. Winkler (1911), 2038 N. Y. 445, revg., 146 App. Div. 314, 130 N. Y. Supp. 691. Mandamus lies to compel a town superintendent of highways to perform his statutory duties. Matter of Marvin (1915), 91 Mise. 287, 155 N. Y. Supp. 28. Where a petition alleges that a ' filing in the town clerk’s office by the superintendent of highways of a certificate of qualified abandonment of a highway pursuant to section 234 of the Highway Law is colorable only and part of a wrongful and fraudulent scheme to permanently abandon the road and deprive petitioner and the public of its benefit, relator will be granted an alternative writ of mandamus requiring the superintendent of highways to cancel such certificate and put the highway in a suitable condition for travel. Matter of Marvin (1915), 91 Mise. 287, 155 N. Y. Supp. 28. Subd. 5. When Granted Against Board of Education. (Fiero, Spec. Pro., 3rd Ed., pp. 1383-1386.) Where a proceeding of a board of education involves simply a matter of school discipline, it is not subject to review by man- damus. Thus, where a teacher is dismissed on a charge of neglect of duty, the proceedings will not be reversed by mandamus. People v. Board of Education (1914), 212 N. Y. 463, affg., 160 App. Div. 557, 145 N. Y. Supp. 853. Mandamus will not lie to review the discretion of a board of education in dismissing a public school teacher because of her views upon the war with Germany and the attitude she would take and was taking in regard to her duties as a teacher in relation to the war. Her remedy is by appeal to the Commissioner of Education. Matter of McDowell v. Board of Education (1918), 104 Misc. 564. Subd. 7. When Issued to Municipal Boards and Officers. (Fiero, Spec. Pro., 8rd Ed., pp. 13888-1398.) A peremptory writ of mandamus will be granted on the applica- tion of the Attorney-General on behalf of the people of the State to compel the city chamberlain of New York City to pay over to the State Treasurer moneys accumulated in the city treasury to 826 MANDAMUS. the credit of the “intestate estates” fund. Matter of People v. Maltbie (1918), 102 Mise. 575, 169 N. Y. Supp. 339. Where the lowest bidder on a municipal contract has no remedy at law for the refusal of the municipal authorities to execute a contract which they have drawn up awarding the work to him, he is entitled to a writ of mandamus compelling them to execute it. People ex rel. Lynch v. Lennon (1911), 147 App. Div. 537, 182 N. Y. Supp. 620. Where a contract is awarded to relator, the lowest bidder, by the sewer commission, for the building of an outlet and they refuse to enter into the contract, pleading lack of available funds, a peremptory writ of mandamus is proper where there is money for construction purposes and no preference as to matter of payments. People ex rel. Phoenix Const. Co. v. Hoyle (1912), 75 Mise. 515, 183 N. Y. Supp. 669. But where, pending the formal acceptance of the lowest bid for a city improve- ment and the execution of a formal contract the proposed improve- ment is abandoned with a bona fide intention of carrying it out in a cheaper form than at first proposed, a peremptory writ of mandamus will not issue at the suit of the lowest bidder to compel the execution of the contract with him. People ex rel. Fisher v. Lennon (1911), 147 App. Div. 640, 132 N. Y. Supp. 567. The duty of a city comptroller, expressly imposed by statute, to indorse upon a contract for a municipal improvement his certificate that there is an unexpended fund applicable to the payment of the contract may be enforced by mandamus. New York State Construction Co. v. City of New York (1914), 163 App. Div. 227, 148 N. Y. Supp. 129; People ex rel. Carlin Const. Co. v. Prendergast (1917), 99 Mise. 8, 163 N. Y. Supp. 583. Where a contract for the construction of a subway provided that all claims of the contractor for extra work must be approved by the chief engineer of the subway commission it was held, that if the chief engineer refused to pass upon a claim a writ of man- damus would issue directing him to act. People ex rel. R. T. 8. Construction Co, v. Craven (1914), 210 N. Y. 443, affg., 160 App. Div. 925, 145 N. Y. Supp. 1140. The refusal of the superintendent of buildings of a city to issue to a property owner, pursuant to the building code of the city, a permit to make the necessary changes to convert an ordinary resi- dence into a building in which to carry on the undertaking busi- MANDAMUS. 827 ness is reviewable by mandamus. People ex rel. Lankton v. Roberts (1915), 90 Mise. 489, 153 N. Y. Supp. 148, affd., 171 App. Div. 890, 155 N. Y. Supp. 1133. Where a city employee was notified after 5 P. M. one day to appear the next day at 10 A. M. to answer charges, and an adjourn- ment was refused, he was not given a fair opportunity to explain as required by the city charter and was entitled to a peremptory writ of mandamus to compel the department head to give him a hearing. People ex rel. LaChicotte v. O'Keefe (1913), 80 Mise. 344, 141 N. Y. Supp. 82. The Special Term has no authority to compel, by mandamus, the acting chief city magistrate of the board of magistrates of the city of New York to prepare, certify and forward to the Civil Service Commission a payroll allotting salaries to certain proba- tion officers, or to compel the Board of Estimate and Apportion- ment to readjust its budget so as to provide salaries for said officers. People ex rel. Kelly v. Dooley (1915), 169 App. Div. 423, 155 N. Y. Supp. 326. Where a statute empowered the register of Kings county to appoint certain employees at salaries not exceed- ing a maximum amount and the Board of Estimate and Apportion- ment refused to make the necessary appropriation, it was held, that a peremptory writ of mandamus would issue directing an appropriation for the payment of such salaries due and to become due. People ea rel. O'Loughlin v. Prendergast (1916), 219 N. Y. 377. A writ of mandamus will le to-compel the commissioners of water supply to the city of New York to afford taxpayers in that city an opportunity to inspect reports of engineers relating to the passing upon and awarding a contract under the provisions of chapter 724 of the Laws of 1905, although the petitioner does not allege that he has suffered special injury or that he contem- plates bringing a taxpayer’s action. Matter of Egan (1912). 205 N.Y. 147. When an officer of a municipality, who is charged by its charter with the duty of removing unlawful incumbrances from the public streets, fails to do so, property owners who are prejudiced thereby may compel action by mandamus. People ex rel. Sibley v. Gresser (1912), 205 N. Y. 24; People ex rel. Browning, Ning & Co. v. 828 MANDAMUS. Stover (1911), 145 App. Div. 259, 180 N. Y. Supp. 92, affd., 203 N. Y. 613. A writ of mandamus may be granted to compel the city clerk of the city of New York to give notices of an election and of the offices to be filled upon the happening of a vacancy which is re- quired to be filled at the coming election, notwithstanding that such vacancy occurred after the clerk had issued notices of election in accordance with the conditions then existing. Matter of Mark- land v. Scully (1911), 203 N. Y. 158. The duty of the comptroller of the city of New York to examine a claim, illegal in form, and certify his opinion whether it should be paid or compromised under section 246 of the charter may be enforced by mandamus. People ex rel. Dady v. Prendergast (1911), 203 N. Y. 1, modfg., 144 App. Div. 308, 128 N. Y. Supp. 1082. A peremptory mandamus may issue to persons composing the local board of health to compel the appointment of a health officer to fill a vacancy. People ex rel. Lynch v. Pierce (1912), 149 App. Div. 286, 133 N. Y. Supp. 802. The action of the board of health of the city of New York in refusing permit for private hospital being authorized, the proper remedy is by mandamus. People ex rel. Sprenger v. Department of Health (1919), 226 N. Y. 209. The Supreme Court has full authority to issue a writ of man- damus compelling the city chamberlain of the city of New York to pay over to the State Treasurer, in accordance with section 44 of the State Finance Law, funds which have remained in his hands for a period of twenty years. On a writ of mandamus to compel the city chamberlain of the city of New York to turn over to the State Treasurer funds remaining in his hands for a period of twenty years, the order should not be limited to the amount unclaimed, but should be made applicable to any sum paid into court, and which shall have remained in his hands for a period of twenty years. Such order does not change the title to the funds, but merely the depository thereof. Matter of People v. Maltbie (1918), 184 App. Div. 743. MANDAMUS. 829 Subd. 8. When Granted to Compel or Control Action by Inferior Tribunals. (Fiero, Spec. Pro., 3rd Ed., pp. 1398-1403.) Where a decree of the surrogate on final judicial settlement has not been appealed from, he cannot be compelled by mandamus proceedings to reverse his decree as to an issue formally raised on such judicial settlement. Matter of DeNuber v. Millard (1912), 152 App. Div. 774, 187 N. Y. Supp. 731. Where a court at Special Term refuses to pass upon requests to find which have been seasonably made, the party aggrieved may apply to the Appellate Division for a writ of peremptory man- damus to compel the court to perform its duty. Norwegian Lutheran Trinity Church v. Krelsovitch (1911), 147 App. Div. 108, 181 N. Y. Supp. 845. Where a court imposes a sentence in a criminal action less than that required by positive statute the correction of the sentence may be required by a peremptory writ of mandamus. Matter of Cropsey v. Tiernan (1916), 172 App. Div. 435, 158 N. Y. Supp. 948. Subd. 9. When Granted Under Civil Service Law. (Fiero, Spec. Pro., 3rd Ed., pp. 1404-1416.) The official acts of civil service commissioners in executing the commands of the statute are ministerial in their nature, and there- fore, are to be reached, when they become the subject of judicial inquiry, by way of writ of mandamus. Slavin v. McGuire (1912), 205 N. Y. 84. The determination of a civil service commission in classifying positions in the public service is subject to a judicial control that is limited to such questions as may properly be re- viewed in proceedings instituted by writ of mandamus. Matter of Simons v. McGuire (1912), 204 N. Y. 253. The court on mandamus, will not set aside the ratings of the Civil Service Com- mission on the claim that certain of the applicants obtained undue advantage by being allowed to participate in the examination after the others had finished, so that they might have obtained advance information as to the questions, where it does not appear that the civil service commissioners were aware of the fact or that the relator was prejudiced thereby. People ex rel. Cardidi v. Creelman (1912), 150 App. Div. 746, 135 N. Y. Supp. 718. 830 MANDAMUS. Mandamus is the only appropriate remedy to secure the re instatement of one holding office in the competitive class who is removed solely for political reasons. People ex rel. Somerville v. Williams (1916), 217 N. Y. 40. The provision of the Civil Service Law that no recommendation or question under the au- thority of the statute shall relate to the political affiliations of any person and that no appointment to or removal from public office shall be in any manner affected or influenced by such affiliations, does not apply to one holding a position in the exempt class. Hence, where such person has been removed, he is not entitled to mandamus to compel reinstatement upon the ground that he has been removed for political reasons. People ex rel. Garvey v. Prendergast (1911), 148 App. Div. 129, 132 N. Y. Supp. 115. The mere unsupported allegation of bad faith on the part of the head of a department in discharging a civil service employee is not enough to justify the granting of either a peremptory or alternative writ of mandamus to compel his reinstatement. Matter of Colligan v. Willams (1915), 91 Mise. 128, 154 N. Y. Supp. 329. An honorably discharged veteran employed as a clerk in the street cleaning department of the city of New York, whose rights have been prejudiced by the division of the eligible lists accord- ing to boroughs, and the subsequent promotion of clerks not veterans, may apply for an alternative writ of mandamus. People ex rel. Franklin v. Fetherston (1915), 168 App. Div. £16, 153 N. Y. Supp. 325. Where the comptroller has refused to countersign a warrant passed by the common council and approved by the mayor, in mandamus proceedings to have a position reclassified by Civil Service Commission, on application for a peremptory writ of mandamus directed to the comptroller requiring him to sign and deliver, it was held, the common council had authority to allow the claim and relator was entitled to the relief asked for. Matter of Peters v. Justice (1912), 75 Misc. 504, 183 N. Y. Supp. 847. A former volunteer fireman wrongfully discharged from a posi- tion in the civil service and reinstated in his position pursuant to a peremptory writ of mandamus, under the statute (Civil Service Law [Cons. Laws, ch. 7], § 22), may maintain an action against the officer who removed him for the amount of salary of which MANDAMUS. 831 plaintiff has been deprived by defendant’s wrongful act. McGraw v. Gresser (1919), 226 N. Y. 57. Mandamus is the proper remedy to review the action of a municipal civil service commission. People ex rel. Finnegan v. McBride (1919), 226 N. Y. 252. Subd. 10. When Granted in Matters Relating to Taxation. (Fiero, Spec. Pro., 8rd Ed., pp. 1416-1418.) A motion to compel the collector of assessments and arrears of the city of New York, upon his refusal to accept the amount of a tax lien, tendered by a person interested in the premises, to recelve payment and cancel a “transfer of tax lien” is unau- thorized and will be denied, the proper remedy being mandamus. Matter of Connell (1912), 77 Misc. 251, 187 N. Y. Supp. 667. A charitable institution which is, by statute, exempted from assessments for local improvements may obtain relief from an ulegal assessment by a writ of mandamus. Matter of Brooklyn Children’s Aid Society (1915), 166 App. Div. 852, 151 N. Y. Supp. 720. Subd. 11. When Granted Against Private Corporations and Associations. (Fiero, Spec. Pro., 8rd Ed., pp. 1418-1429.) Mandamus does not lie to review the validity of corporate action. People ex rel. Wilson v. African W. M. E. Church (1913), 156 App. Div. 386, 141 N. Y. Supp. 294. Mandamus is the proper remedy to compel an outgoing officer of a corporation to deliver over books and papers belonging to the corporation. People ex rel. Keeseville, etc., R. R. Co. v. Powers (1911), 145 App. Div. 693, 130 N. Y. Supp. 529. The common-law right of a stockholder to inspect the books of his corporation may be enforced by mandamus. Matter of Wygant (1917), 101 Mise. 509, 167 N. Y. Supp. 369. Where, on an application by a stockholder for a writ of mandamus to compel his corporation to permit him to inspect the stock book, it appears that his purpose in seeking the inspection, is “ sinister and inimical” to the corporation, his application, in the exercise of judicial discretion, should be denied. People ex rel. Britton 832 MANDAMUS. v. Am. Press Assoc. (1912), 148 App. Div. 651, 133 N. Y. Supp. 216; People ex rel. Lehman v. Consolidated Fire Alarm Co. (1911), 145 App. Div. 427, 127 N. Y. Supp. 348. A stock- holder is not entitled to a peremptory writ of mandamus com- pelling his corporation to allow him to examine its books for the purpose of discovering the prices at which the corporation retired outstanding bonds which it purchased in the open market, if no preliminary demand for such information was made upon the corporation, but merely a demand for a written statement of its affairs. Matter of Hitchcock (1912), 149 App. Div. 824, 134 N. Y. Supp. 174. But where such a demand has been made and the stockholder alleges that bonds of the corporation were re- deemed before maturity at a greater cost than the market value, and such allegations are denied by the corporation, the stock- holder is entitled to an alternative writ of mandamus by which his right to an inspection of the books may be determined as an issue of fact. Matter of Hitchcock (1913), 157 App. Div. 328, 142 N. Y. Supp. 247. Mandamus will not issue on the relation of the director of a corporation to compel it to exhibit for examina- tion the books of the corporation to an audit company as the relator’s agent for an unlimited examination by such audit com- pany’s employees. People ex rel. Bartels v. Borgstede (1915), 169 App. Div. 421, 155 N. Y. Supp. 322. Mandamus will not lie against voluntary unincorporated asso- ciations in the absence of some statutory duty imposed on them. People ex rel. Solomon v. Brotherhood of Painters (1916), 218 N. Y. 115, revg., 169 App. Div. 595, 155 N. Y. Supp. 438. Although the constitution of a society provides that a member may file a written appeal from a decision of the society, which the president shall read at the next meeting, and if the majority are of the opinion that an injustice has been done, or that the decision is contrary to the constitution, the matter may be taken up de novo, a member who has been expelled is not limited to such remedy within the society itself, but may invoke the writ of man- damus to compel his restoration to membership. People v. Bern- stein Sick, ete., Benefit Soc. (1914), 161 App. Div. 823, 146 N. Y. Supp. 886. When a foreign corporation accepts a license to do business in this State or does some act which subjects itself to the jurisdiction MANDAMUS. 833 of this State, it may be treated as a domestic corporation to the extent of rendering it subject to the writ of mandamus. Where, however, it has not been authorized to do business in this State and has done no act to subject it to the jurisdiction of this State, its actions in reference to its internal affairs may not be controlled by the writ of mandamus. People ex rel. Solomon v. Brotherhood of Painters (1916), 218 N. Y. 115. ARTICLE III. BY WHAT COURT WRIT MAY BE GRANTED. (Fiero, Spec. Pro., 3rd Ed., pp. 1429-1432.) An application for a writ of mandamus requiring the State Comptroller to correct or reduce any assessment roll containing assessments of forest lands against the State should be made within the third judicial district. People ex rel. Town of Brighton v. Williams (1911), 145 App. Div. 8, 129 N. Y. Supp. 457. Jurisdiction of county court to issue peremptory writ of man- damus under the Drainage Law, see People ex rel. Dunphy v. Chaney (1916), 171 App. Div. 308, 156 N. Y. Supp. 1035. The writ of mandamus authorized by section 381 of the Election Law is the ordinary writ and the ordinary and established rules and procedure are applicable to it. Matter of Whitman (1918), 225 N. Y. 1. ARTICLE IV. PARTIES. (Fiero, Spee. Pro., 8rd Ed., pp. 1432-1442.) Any citizen may institute proceedings to compel a public officer to perform duties of a public character. People ex rel. Hotchkiss v. Smith (1912), 152 App. Div. 514, 187 N. Y. Supp. 387, affd., 206 N. Y. 231. A citizen of the State who is a resident of the particular county has such an interest as entitles him to apply for a writ of man- damus to have determined the legality of a special election for sheriff. People ex rel. Conklin v. Boyle (1917), 98 Mise. 364, 163 N. Y. Supp. 72, affd., 178 App. Div. 908, 164 N. Y. Supp. 1107. An application for a writ of mandamus requiring in- 53 834 MANDAMUS. spectors of election to recount as in favor of licensing hotels to sell liquor certain ballots rejected as void cannot be granted on the application of a hotel keeper. Matter of Tamney v. Atkins (1913), 209 N. Y. 202, revg., 151 App. Div. 309, 136 N. Y. Supp. 865. A proceeding ‘by mandamus really designed to try the title to an office held by another, to which the incumbent of the office is not a party, is not a proper or available remedy. People v. Sohmer (1914), 211 N. Y. 565, affg., 162 App. Div. 921, 146 N. Y. Supp. 1108. In a proceeding. by mandamus under the Civil Service Law to compel the reinstatement of an officer or employee protected by law and illegally removed, the person appointed in the place of the relator is a necessary party to the proceeding. Matter of Cooper v. Paris (1911), 73 Mise. 244, 130 N. Y. Supp. 1048. A foreign corporation doing business in this State may proceed by mandamus to compel city officials to perform their duty to remove obstructions from the streets. People ex rel. Browning, King & Co. v. Stover (1911), 145 App. Div. 259, 130 N. Y. Supp. 92, affd., 203 N. Y. 613. Where lands sold at a tax sale were conveyed previous to the enactment of the General Tax Law which authorized an applica- tion for cancellation to be made by the owner of such lands at the time of sale, mandamus to compel cancellation will not lie on behalf of the owner when the purchaser is not made a party to the proceeding. People ex rel. Staples v. Sohmer (1912), 206 N. Y. 39, affg., 150 App. Div. 8, 184 N. Y. Supp. 543. A private person, who complains of no injury which is not common to the whole community, will not be granted a writ of mandamus compelling a street railway company to exercise its franchise and rebuild a part of its line which it has abandoned. People ex rel. Karl v. United Traction Co. (1911), 145 App. Div. 645, 130 N. Y. Supp. 477. It is proper in a mandamus proceeding brought against a city official to compel the reinstatement of the relator in the city employ, to substitute the present official in place of the official who held office when the proceeding was commenced. People ex rel. Collins v. Ahearn (1911), 146 App. Div. 185, 130 N. Y. Supp. 497. MANDAMUS. 83é A transfer tax appraiser who is still holding office and has not been removed has no standing to attack the action of the Civil Service Commission in classifying his position. Matter of Weeks v. Kraft (1911), 147 App. Div. 403, 132 N. Y. Supp. 228. A taxpayer in the city of New York is entitled to a peremptory writ of mandamus requiring the commissioners of the water supply to allow an inspection of the reports of the engineers of the board relating to the award of a contract where they have let the con- tract, involving a large amount of money, to a contractor who was not the lowest bidder. Matter of Egan v. Board of Water Supply (1911), 148 App. Div. 177, 133 N. Y. Supp. 129, affd., 205 N.Y. 147. The county clerk of the county of New York is not entitled to a peremptory writ of mandamus to compel the city comptroller to certify and audit salaries of certain employees in his office, where the county clerk’s duty ends with his own certification and transmission of the payroll to the comptroller. People ex rel. Schneider v. Prendergast (1916), 172 App. Div. 215, 158 N. Y. Supp. 615. The secretary of a county committee of a political party is not legally interested in the appointment of an election commis- sioner so as to be entitled to a writ of mandamus to compel the board of supervisors to appoint one of the persons certified by the county committee under section 194 of the Election Law. People ex rel. Mullarkey v. Supervisors of Montgomery (1917), 180 App. Div. 125, 167 N. Y. Supp. 323. Mandamus proceedings may be maintained by a citizen and taxpayer to compel a company having no franchise in the streets to remove electric light poles therefrom. People ex rel. Clements vy. Williams (1917), 100 Mise. 569, 166 N. Y. Supp. 560. ARTICLE V. THE PETITION OR AFFIDAVIT ON THE PART OF THE RELATOR. (Fiero, Spec. Pro., 8rd Ed., pp. 1442-1445.) A peremptory writ of mandamus will not be issued upon a petition based on information and belief as such a petition does not show conclusively that the petitioner has a clear legal right +o the relief demanded. People ex rel. Keating v. Prendergast (1912), 151 App. Div. 541, 136 N. Y. Supp. 184. 836 MANDAMUS. ARTICLE VI. ALTERNATIVE AND PEREMPTORY WRITS DEFINED AND EXPLAINED. (Fiero, Spec. Pro., 8rd Ed., pp. 1445-1447.) CopE Civ. Pro., § 2067. Kinds of writs; how alternative writ granted. Code Civ. Pro., § 2067. Kinds of writ; how alternative writ granted. A writ of mandamus is either alternative or peremptory. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor. Previous notice of the application must be given to a judge of the court, or to the corporation board, or other body, officer, or other person to which or to whom it is directed. Amended by L. 1913, ch. 574. An alternative writ of mandamus is in the nature of an order to show cause. It affects no substantial right because it deter- mines nothing for or against either party, except questions as to the jurisdiction of the court. People ex rel. Wilson v. African W. M. £. Church (1913), 156 App. Div. 386, 141 N. Y. Supp. 394; People ex rel. Elmira Advertiser Assn. v. Gorham (1915), 169 App. Div. 891, 155 N. Y. Supp. 727. ARTICLE VII. PEREMPTORY WRIT AND PROCEEDINGS THEREON. (Fiero, Spec. Pro., 3rd Ed., pp. 1447-1461.) Supp. 1. When peremptory writ issues in the first instance. 2. The writ and practice in moving therefor. Subd. 1. When Peremptory Writ Issues in the First Instance. (Fiero, Spec. Pro., 3rd Ed., pp. 1447-1458.) A peremptory writ of mandamus issues only where the appel- lant’s right to it depends upon questions of law. In every other case it cannot be issued until after an alternative writ. People ex rel. Giles v. Klauder-Weldon D. M. Co. (1917), 180 App. Div. 149, 167 N. Y. Supp. 429. It may only issue when the facts upon which the relator relies are undisputed. Matter of Hitchcock (1913), 157 App. Div. 328, 142 N. Y. Supp. 247; Matter of Rexford Flats Bridge Co, (1915), 168 App. Div. 558, 153 N. Y. Supp. 154. \ peremptory writ of mandamus is not the appropriate remedy MANDAMUS. 837 to compel performance of a continuing duty or duty arising in the future. Matter of Public Service Commission (1916), 172 App. Div. 324, 158 N. Y. Supp. 480, affd., 219 N. Y. 355. While ordinarily courts will not assume jurisdiction to decide questions in advance of some action taken or refused, actually involving the rights of persons interested, where the situation is exceptional and extraordinary, and the facts warrant the remedy, a peremptory writ of mandamus may issue. People ex rel. Hotchkiss v. Smith (1912), 206 N. Y. 281. The act of a board of supervisors in designating a newspaper for the publication of the session laws cannot be set aside by a peremptory writ of mandamus. People ex rel. Elmira Advertiser Assn. v. Gorman (1915), 169 App. Div. 891, 155 N. Y. Supp. 727. Where the allegations of a petition by a contractor that it has duly performed its contract for the construction of a State high- way; that said highway has been accepted by the State, and that there is a certain balance due, are controverted by an affidavit of the State Commissioner of Highways, to the effect that said con- tract has not been duly performed; that the acceptance of the highway was void, for the reason that it was based upon insufi- cient and incorrect information and was subsequently rescinded ; and that alleged defects in the highway, made it practically value- less within one year of its alleged completion, a peremptory writ of mandamus should not be issued compelling the payment of the amount due under the contract. People ex rel. B. D. Pierce, Jr., Co. v. Sohmer (1915), 167 App. Div. 487, 153 N. Y. Supp. 195. A peremptory writ of mandamus will be granted in the first instance to compel the commissioner of public safety, chief of police and his subordinates to enforce the observance of the pro- visions of the Liquor Tax Law with respect to obstructions in windows of saloons. People ex rel. Brown v. Kennedy (1918), 102 Misc. 450, 169 N. Y. Supp. 1022. Where a statute provides that a public fund shall be trans- ferred from one public official to another and no substantial dis- pute on any question of fact is involved, the transfer may be compelled by a peremptory writ of mandamus. fatter of Bristol (1916), 93 Misc. 626, 158 N. Y. Supp. 503, affd., 173 App. Div. 545, 160 N. Y. Supp. 410. 838 MANDAMUS. Subd, 2. The Writ and Practice on Moving Therefor. (Fiero, Spec. Pro., 8rd Ed., pp. 1458-1460.) On a motion for a peremptory writ of mandamus the allega- tions of the opposing affidavits will be considered to be true. If the relator, notwithstanding the conflicting statements in the affidavit, still demands a peremptory writ, it is equivalent to a demurrer. Matter of Rexford Flats Bridge Co. (1915), 168 App. Div. 558, 153 N. Y. Supp. 154; Matter of Sullwvan v. Me- Aneny (1911), 145 App. Div. 413, 180 N. Y. Supp. 24; People ex rel. Lehman v. Consol. Pure Alarm Co, (1911), 145 App. Div. 427, 127 N. Y. Supp. 348; Matter of Hitchcock (1912), 149 App. Div. 824, 184 N. Y. Supp. 174; People ex rel. Lindgren v. McGuire (1912), 151 App. Div. 413, 136 N. Y. Supp. 88; People ex rel. B. D. Pierce, Jr., Co. v. Sohmer (1915), 167 App. Div. 437, 1538 N. Y. Supp. 195; People ex rel. Franklin v. Fetherston (1915), 168 App. Div. 416, 153 N. Y. Supp. 325; People ex rel. Giles v. Klauder-Weldon D. M. Co. (1917), 180 App. Div. 149, 167 N. Y. Supp. 429; In re Goldman (1911), 182 N. Y. Supp. 607; People ex rel. Giles v. Klauder-Weldon Dyeing Mach. Co. (1917), 180 App. Div. 149, 167 N. Y. Supp. 429. Where no papers are filed in reply to a petition for a peremptory writ of mandamus the facts as stated in the petition must be taken as true. People ca rel. Brownell v. Higgins (1916), 96 Mise. 485, 160 N. Y. Supp. 721. Where direct issues of fact are presented upon the moving and answering and replying affidavits the issuance of a peremptory mandamus is error. Blumenthal v. Washington Heights Hospital (1915), 153 N. Y. Supp. 940. Where, on an application for a writ of peremptory mandamus an allegation by the petitioners that they have been duly appointed drainage commissioners is put in issue by a positive denial, there is no authority to issue a peremptory writ. People ex rel. Dunphy v. Chaney (1916), 171 App. Div. 303, 156 N. Y. Supp. 1035. Averments of lack of knowledge or information sufficient to form a belief as to the allegations contained in a petition for a writ of peremptory mandamus are not sufficient to raise an issue as to the matters to which such allegations relate. Matter of Cooper v. Paris (1911), 73 Mise. 244, 180 N. Y. Supp. 1043. MANDAMUS, 839 A peremptory writ of mandamus should command that which is in conformity with a legal obligation imposed; but it may vary the details of the manner of doing that act. Matter of P. 8. Comm. v. N. Y. & Queens Co. R. Co. (1915), 170 App. Div. 580, 156 N. Y. Supp. 823. The court, in awarding a peremptory writ of mandamus, will mould it according to the just rights of the parties, and where the petition sets forth a substantial right the proceeding will not fail because the relator asks too much or mistakes to some extent the relief to which he is entitled. Matter of Albany Syndicate v. Runkle (1917), 101 Mise. 41, 166 N. Y. Supp. 488. Where it appears, on an application for a peremptory writ of mandamus to compel city officials to remove obstructions in a street, that the obstructions have existed for a long time, the writ should direct the officials to remove them, or in their dis- cretion, to take appropriate measures to compel their removal by the owner or lessee, and if such proceedings are instituted, to prosecute them with all reasonable speed. People ex rel. Brown- ing, King & Co. v. Stover (1911), 145 App. Div. 259, 130 N. Y. Supp. 92, affd., 203 N. Y. 613. All allegations in the answering affidavits not denied by the opposing affidavit are deemed admitted, when a peremptory writ of mandamus is asked for. People ex rel. Van Voast v. Townley (1918), 184 App. Div. 568, 172 N. Y. Supp. 1. ARTICLE VIII. ALTERNATIVE WRIT AND PROCEEDINGS THEREON. (Fiero, Spec. Pro., 8rd Ed., pp. 1461-1475.) Supp. 1. When question of fact arises, alternative writ issues. 2. Contents of alternative writ and when returnable. 3. Trial of issues on alternative writ. Subd. 1. When Question of Fact Arises, Alternative Writ Issues. (Fiero, Spec. Pro., 3rd Ed., pp. 1461-1468.) Where, on a proceeding by an order to show cause seeking a writ of mandamus, the opposing affidavits put in issue questions of fact, the court may issue an alternative writ. People ex rel. Goldschmidt v. Travis (1915), 167 App. Div. 475, 152 N. Y. Supp. 1058; People ex rel. Urban Water Supply Co. v. Connoly 840 MANDAMUS. (1914), 164 App. Div. 168, 149 N. Y. Supp. 693, affd., 213 N. Y. 706; Matter of Dooley (1913), 81 Misc. 340, 142 N. Y. Supp. 366; People ex rel. Clements v. Williams (1917), 100 Misc. 569, 166 N. Y. Supp. 560; People ex rel. Horvay v. Board of Education (1914), 156 N. Y. Supp. 65. Although an alterna- tive writ is not specially prayed for the court has power to grant it on denying the peremptory writ. Matter of Dooley (1913), 81 Mise. 340, 142 N. Y. Supp. 366. Where an issue of fact such as laches is raised, an alternative rather than a peremptory writ should issue in cases where mandamus is an appropriate remedy. People ex rel. City of Tonawanda v. Fitzhenry (1915), 170 App. Div. 227, 156 N. Y. Supp. 70. Where a peremptory writ is denied because the relator is not entitled thereto, if the allegations of the return are taken to be true, the relator may request that an alternative writ issue. Matter of Rexford Flats Bridge Co. (1915), 168 App. Div. 558, 153 N. Y. Supp. 154. Where the answer of the defendant to a petition for a per- emptory writ of mandamus, in addition to putting in issue the various material allegations of the petition, sets forth at consider- able length the facts upon which it bases its contention that the application should be denied, many of which facts are denied in the replying affidavit, the court upon refusing to grant a per- emptory writ may grant an alternative writ. People ex rel. Clements v. Williams (1917), 100 Misc. 569, 166 N. Y. Supp. 560. Where, upon the petition and opposing papers an issue is raised as to whether the relator’s dismissal from the civil service was in good faith in a legal sense, an alternative writ of mandamus may be granted to try out such question. People ex rel. Skilton v. Smith (1915), 91 Mise. 130, 154 N. Y. Supp. 288. Mandamus should not issue without trial where the answer alleges impossibility of compliance. Public Service Com. v. International Ry. Co., 224 N. Y. 6381, Where a civil service employee who was an exempt fireman was notified by the head of his department that because of insufficient appropriation he would be given an indefinite leave of absence without pay, but he insists that in an oral statement by the head of the department he was told that the reason he was laid off was MANDAMUS. 841 on account of stories regarding his improper conduct while attend- ing a term of court it was held that in a proceeding to compel the reinstatement of the relator a proper case was presented for an alternative writ of mandamus, in order that the real facts might be ascertained before the court was called upon to apply any measure of relief. People ex rel. Cahill v. Green, 103 Mise. TL. Upon an application under section 93 of the Railroad Law which provides that when a highway crosses a railroad by an over- head bridge, the framework of the bridge and its abutments shall be maintained and kept in repair by the railroad company and the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality having jurisdiction over and in which same are situated, an issue of fact raised by an answer denying the allegations of the petition can only be deter- mined by issuing an alternative writ of mandamus. Matter of City of New York (1919), 105 Misc. 659. An application for a writ of alternative mandamus for the reinstatement of relator in the position of fireman in the uni- formed force of the fire department of the city of New York, from which position he was retired without a hearing, will be granted and a motion for reargument denied. People ex rel. Kane v. Drennan (1919), 106 Mise. 40, 173 N. Y. Supp. 879. Subd. 2. Contents of Alternative Writ and When Returnable. (Fiero, Spec. Pro., 8rd Ed., pp. 1468-1470.) An alternative writ is insufficient which does not contain a statement of facts constituting the grievance to redress which it is issued, but merely contains legal conclusions or deductions of illegality based upon facts assumed arguendo, but not stated. Reynolds v. Williams (1914), 154 N. Y. Supp. 407. Subd. 3. Trial of Issues on Alternative Writ. (Fiero, Spec. Pro., 3rd Ed., pp. 1470-1475.) Issue in a proceeding for an alternative writ of mandamus is joined not by affidavits, but by the filing of a return in the office of the clerk of the county designated in such writ within twenty days after service thereof, or by a demurrer thereto. People ea 842 MANDAMUS. rel. Elmira Advertiser Assn. v. Gorham (1915), 169 App. Div. 891, 155 N. Y. Supp. 727. The writ and return thereto are in substance pleadings upon which issues of fact or law arise accord- ing as there may be demurrers or denials of the facts alleged. Upon these pleadings the issues are to be determined and no sub- stantial right is affected until such determination. Hence, an alternative writ cannot be quashed or set aside upon motion for any matter involving the merits. People ex rel. Wilson v. African W. M. EF. Church (1918), 156 App. Div. 386, 141 N. Y. Supp. 394. On the trial of an alternative writ of mandamus the burden is on the relator to establish the allegations of the petition, and where neither he nor defendant, who files a return, offers any evidence, the writ will be dismissed for want of proof. People ex rel. Melenbacker v. Hubbell (1913), 82 Misc. 624, 144 N. Y. Supp. 219. ARTICLE X. THE RETURN. (Fiero, Spec. Pro., 3rd Ed., pp. 1479-1488.) A writ of mandamus will issue although the applicant therefor may have an adequate legal remedy unless the objection is set up in the return. Matter of Mahoney v. Board of Education (1917), 179 App. Div. 782, 167 N. Y. Supp. 222. The allowance of the alternative writ does not render the ques- tion of its sufficiency res judicata for if it were so section 2073 of the Code of Civil Procedure would, in some cases, be rendered nugatory. Reynolds v. Williams (1914), 154 N. Y. Supp. £07. On an application for an alternative writ of mandamus the relator should not be permitted to submit an affidavit in reply to the return and controverting statements therein contained and setting forth additional matters in support of his petition. The consideration of such additional affidavit is error and it should be stricken from the record. Matter of Griffin v. Williams (1915), 168 App. Div. 63, 153 N. Y. Supp. 926. Where the return to an alternative writ of mandamus to compel the reinstatement of a civil service appointee admitted the correct- ness of the charges as set forth by the relator, by a failure to demur, there is an admission of the formal sufficiency of the MANDAMUS. 843 charges. People ex rel. Rudd v. Cropsey (1916), 173 App. Div. 714, 159 N. Y. Supp. 641, affd., 219 N. Y. 641. ARTICLE XI. DEFENSES TO MANDAMUS. (Fiero, Spec. Pro., 8rd Ed., pp. 1488-1495.) Supp. 1. Defenses generally. 2. Laches. Subd. 1. Defenses Generally. (Fiero, Spec. Pro., 3rd Ed., pp. 1488-1492.) An application for a writ of mandamus is not barred where an application for a prior writ for the same purpose was dismissed “without prejudice” and there was no decision upon the merits. People v. Bernstein Sick, etc., Soc. (1914), 161 App. Div. 823, 146 N. Y. Supp. 886. It is no defense to a mandamus proceeding to compel an out- going officer of a corporation to deliver over books and papers be- longing to the corporation that they are not in his actual custody, and that he has turned them over to a stranger. People ex rel. Reeseville, etce., R. R. Co. v. Powers (1911), 145 App. Div. 693, 180 N. Y. Supp. 529. Although a member of a mutual benefit society incorporated under the membership corporation law has been suspended for three years for misconduct, and although a writ of mandamus to compel his reinstatement on account of such suspension has been refused by the court, that is no bar to a subsequent application for a reinstatement by mandamus where he was subsequently expelled for an alleged failure to pay dues. People v. Philip Bernstein Sick, etc., Soc. (1914), 161 App. Div. 823, 146 N. Y. Supp. 886. Where technical objections are desired to be raised to the papers on an application for a peremptory writ of mandamus, their sufficiency should be challenged at the first opportunity, and the point should be stated in the order to have been preliminarily raised and passed upon by the court, otherwise the objection will be deemed to have been waived and cannot be urged on appeal. Matter of Flaherty v. Craig (1918), 184 App. Div. 428. Mandamus will not issue, where obedience is impossible, since courts will not command a defendant, under pain of punishment for contempt, to do what it cannot. Where, therefore, upon appli- 844 MANDAMUS. cation for a writ of mandamus, the answer alleges inability of defendant to comply, the issue thereby raised should be tried, and it is error to grant a motion for judgment on the pleadings. Public Service Commission v. International Ry. Co. (1918), 224 N. Y. 631. Subd. 2. Laches. (Fiero, Spec. Pro., 8rd Ed., pp. 1492-1495.) Where a period of fifteen years has elapsed between the enact- ment of a statute relative to the cancellation of tax sales and the application for relief by a person claiming the benefit thereof, a writ of mandamus is properly denied for laches of the relator. People ex rel. Staples v. Sohmer (1912), 206 N. Y. 39. Where a member of a fire department was retired upon a pension because of an injury received which rendered him insane for fourteen years, when he was restored to sanity by a surgical operation, it was held that he could not be charged with laches in subsequently delaying for two months before applying for a writ of mandamus to compel the fire commissioner to increase his pension to the amount he was lawfully entitled to receive. People ex rel. Jennings v. Johnson (1914), 161 App. Div. 625, 146 N. Y. Supp. 977. Where a county has unlawfully appropriated taxes upon bank stock, a city entitled to receive the same may enforce its right by action, though, under some circumstances, mandamus is also a proper remedy. But where there has been a long delay by the city in enforcing its right and the moneys collected may have gone into the general fund of the county and have been diverted to other purposes, so that a tax levy may be necessary to satisfy the claim of the city, the writ of mandamus should be denied upon the ground of laches and the city should be left to its remedy by action. People ex rel. City of Tonawanda v. Fitzhenry (1915), 170 App. Div. 227, 156 N. Y. Supp. 70. ARTICLE XII. MATTERS OF PRACTICE. (Fiero, Spec. Pro., 3rd Ed., pp. 1495-1503.) It is improper to consolidate two mandamus proceedings based on different facts and against different respondents in part at MANDAMUS. 845 least. People ex rel. Collins v. Ahern (1911), 146 App. Div. 135, 180 N. Y. Supp. 497. Where affidavits presented in opposition to a motion for an alternative writ of mandamus are received without objection, and the questions involved are argued upon the merits before the special term and upon appeal to the Appellate Division the pro- ceeding may be treated as an application for a peremptory writ. People ex rel. Wilson v. African W. M. HE. Church (1918), 156 App. Div. 386, 141 N. Y. Supp. 394. Where a person dismissed from a civil service position on the ground that no appropriation had been made for his position, petitioned for a peremptory writ of mandamus to compel his reinstatement, he is entitled, on subsequently discovering that the head of his department had appointed a person in the exempt class to perform the same duties at a larger salary, to have his affidavits setting forth said facts made part of his moving papers. People ex rel. Schott v. Prendergast (1911), 148 App. Div. 135, 132 N. Y. Supp. 118. Where technical objections are desired to be raised to the papers on an application for a peremptory writ of mandamus, their sufficiency should be challenged at the first opportunity, and the point should be stated in the order to have been preliminarily raised and passed upon by the court, otherwise the objection will be deemed to have been waived and cannot be urged upon appeal. Matter of Flaherty v. Craig (1918), 184 App. Div. 428, 171 N. Y. Supp. 624. ARTICLE XIII. STAY OF PROCEEDINGS; DAMAGES AND FINES. (Fero, Spec. Pro., 8rd Ed., pp. 1503-1506.) Cope Crv. Pro., § 2088. When relator to recover damages. Code Civ. Pro., § 2088. When relator to recover damages. Where a return has been made to an alternative writ of mandamus, issued upon the relation of a private person, the court, upon making a final order for a peremptory mandamus, must also, except where said writ is directed to a state officer, or officers, or an officer or officers of a municipal or pri- vate corporation, if the relator so elects, award to the relator, against the defendant who made the return, the same damages, if any, which the relator might recover, in an action against that defendant, for a false return. The relator may require his damages where entitled thereto as aforesaid, to be 846 MANDAMUS, assessed upon the trial of an issue of fact, if the verdict, report or decision is in his favor. Such an assessment of damages bars an action for a false return. Amended by L. 1913, ch. 574. Section 1328 of the Code of Civil Procedure has no application to a writ of mandamus. People ex rel. K., A.C. & L. C. BR. R. Co. v. Powers (1911), 73 Mise. 269, 1830 N. Y. Supp. 865. On a proceeding for a peremptory writ of mandamus by a school teacher against a board of education to compel the certification of the relator’s pay-roll at a larger salary than had been certified no damages can be awarded. Section 2088 of the Code of Civil Procedure applies only where a final order for a peremptory writ is made after a return has been made to an alternative writ; and even then it is not applicable where a writ is directed to officers of a municipal corporation. People ex rel. Becker v. Board of Education (1916), 162 N. Y. Supp. 643. ARTICLE XVI. APPEALS. (Fiero, Spec. Pro., 3rd Ed., pp. 1511-1518.) Cope Civ. Pro., § 2087. Appeals. Code Civ. Pro., § 2087. Appeals. An appeal from an order granting a peremptory writ of mandamus, where an alternative writ of mandamus was not previously issued, and an appeal from an order granting or denying an application for an alternative writ of mandamus, must be taken as from a final order made in a special proceeding. An appeal from a final order made upon an alternative man- damus, must be taken as an appeal from a judgment; and each provision of law, relating to an appeal from «a judgment, either to the appellate division or to the court of appeals, is applicable thereto. But where an appeal is taken, as prescribed in this section, from an order of the appellate division, granting a peremptory mandamus, made upon an original appli- cation, or from a final order, made upon an alternative mandamus, granted at the appellate division, the execution of the order appealed from shall not be stayed, except by the order of the same appellate division, made upon such terms, as to security or otherwise, as justice requires. Amended by L. 19138, ch. 574. A writ of mandamus is not always demandable as an absolute right; an application therefor is addressed in the first instance to the sound discretion of the court at special term, reviewable by the Appellate Division, and where it appears that the facts MANDAMUS. 847 are such as to justify the court in refusing the writ, as matter of discretion, the exercise thereof will not be interfered with unless it appears that there has been an abuse of judicial discretion. People ex rel. Clements v. Williams (1917), 100 Mise. 569, 166 N. Y. Supp. 560. Where the jury finds for the relator on the trial of an alterna- tive writ of mandamus, but a motion for a peremptory writ 1s denied, the verdict cannot be reviewed upon appeal where there was no motion for a new trial. People v. Johnson (1914), 161 App. Div. 625, 146 N. Y. Supp. 977. Upon an appeal to the Appellate Division from an order simply denying an application for a peremptory writ of mandamus, when the answering affidavits, if true, constitute a defense, there is nothing for the court to review. Matter of Whitten (1912), 152 App. Div. 506, 187 N. Y. Supp. 360. No appeal to the Appellate Division lies from an order of the special term deny- ing a relator’s motion for a reargument of a motion for a writ of mandamus. People ex rel. Urban Water Supply Co. v. Connolly (1914), 164 App. Div. 163, 149 N. Y. Supp. 693, affd., 213 N. Y. 706. Where the material allegations of a petition for a writ of mandamus are admitted, or not denied, and different inferences cannot be drawn therefrom, only a question of law is presented and the decision is upon the merits and appealable to the Court of Appeals. People ex rel. Van Tine v. Purdy (1917), 221 N. Y. 396. When an order of the Appellate Division denying an appli- cation for a writ of mandamus fails to indicate whether it was denied as a matter of law or in the exercise of discretion, the Court of Appeals may look into the opinion to ascertain upon which ground it based its decision, and, if it appears therefrom that the application was denied solely as a matter of law, the order is appealable. People ex rel. Flynn v. Woods (1916), 218 N. Y. 124. Where the special term, in the exercise of its discretion, denies an application for an alternative writ of mandamus and the Appellate Division also in the exercise of discretion affirms the order denying the application, the order of affirmance is not the object of review in the Court of Appeals. People ex rel. Elmira Advertiser Association (1918), 222 N. Y. 712. Notwithstanding the denial of a motion for a peremptory writ 848 MANDAMUS. of mandamus as a matter of law and not as a matter of discretion if the Appellate Division be of the opinion that the writ should not issue as a matter of discretion the order denying it will be affirmed. Matter of Haydorn v. Carroll (1918), 184 App. Div. 151, 171 N. Y. Supp. 601. An order granting or denying a peremptory writ of mandamus is appealable. Matter of Haydorn v. Carroll (1918), 184 App. Div. 151, 171 N. Y. Supp. 601. NAME OF CORPORATION, PROCEEDINGS TO CHANGE NAME. See Corporations, Cuanerng Name oF. NAME OF INDIVIDUAL, PROCEEDINGS TO CHANGE. OFFICERS, PUBLIC, PROCEEDINGS TO COMPEL DELIVERY OF BOOKS AND PAPERS TO. See Pusiic Orricers, Procrepines to CompeL DrELivery oF Booxs anp Papers To. OFFICERS OF CORPORATIONS, SUPERVISION OF ELECTION OF. See Corporations, Revirw or ExLection oF OFFICERS OF. PERSON CONFINED FOR CRIME, CARE OF PROPERTY OF. See Crime, Carr or Property or Person Conrinep For. PROHIBITION. (Fiero, Spec. Pro., 3rd Ed., pp. 1546-1574.) Art. I. The character and purpose of the writ. II. When the writ lies; by what court granted. III. The alternative writ and proceedings thereon. VI. Quashing the writ, stay of proceedings and appeal. ARTICLE I. THE CHARACTER AND PURPOSE OF THE WRIT. (Fiero, Spec. Pro., 8rd Ed., pp. 1547-1550.) The writ of prohibition is an extraordinary writ, issuing out of a superior court, directed to the judge and parties of a suit in an inferior court, commanding them to cease the prosecution thereof, upon a suggestion that either the cause originally or some collateral matter arising therein is beyond the jurisdiction of the court. People ex rel. Jimeson v. Shongo (1913), 83 Mise. 325, 144 N. ¥Y. Supp. 885. Such a writ is a preventive process and should never be resorted to except in cases where it is absolutely necessary to protect a party’s rights, and where they cannot be safeguarded by an appeal. People ex rel. Heminway v. Bostle- mann (1913), 82 Misc. 629, 144 N. Y.-Supp. 148, 20 N. Y. Cr. 299; People ex rel. Woodbury v. Hendrick (1915), 215 N. Y. 339; People ex rel. United Building M. Co. v. Special Term (1911), 145 App. Div. 530, 130 N. Y. Supp. 553; People ex rel. Whitman v. Woodward (1912), 150 App. Div. 770, 185 N. Y. Supp. 378, 27 N. Y. Cr. 354; Matter of McIntyre v. Sawyer (1917), 179 App. Div. 535, 166 N. Y. Supp. 631. Where, how- ever, a statute imposes restrictions as to the circumstances in which an inferior court or judge thereof may act in matters otherwise within its jurisdiction and these restrictions are dis- regarded, the party aggrieved may, in the discretion of the court, be entitled to a writ of prohibition. People ex rel. United Build- ing M. Co. v. Special Term (1911), 145 App. Div. 530, 130 N. Y. Supp. 553. Where it clearly appears that great public injury would be likely to follow if the writ of prohibition issued, and the moving papers do not show facts justifying a claim that irreparable in- 54 849 850. PROHIBITION, jury would follow a denial of the writ, the motion therefor will be denied on the ground that it would be apt to defeat and not pro- mote the ends of justice. People ex rel. Jordan v. Wotherspoon (1916), 94 Misc. 419, 157 N. Y. Supp. 9238. The writ of prohibition is an appropriate remedy where it specifically appears to the Appellate Division that a justice of the court having original jurisdiction is about to act beyond its legitimate powers, and in excess of its jurisdiction. People ex rel. Weeks v. Platt (1916), 173 App. Div. 451, 159 N. Y. Supp. 920; People v. Municipal Court (1914), 162 App. Div. 477, 147 N. Y. Supp. 615, affd., 212 N. Y. 595. The excess of jurisdiction, as distinguished from want of jurisdiction, for which a writ of prohibition will lie, does not relate to the prevention of errors of law or of procedure in an action or proceeding over which the court has jurisdiction, but to a threatened exercise of jurisdiction to make a determination or decision which the court has not ac- quired or cannot acquire jurisdiction to make, although it has gen- eral jurisdiction of the action or proceeding. People ex rel. Wood- bury v. Hendrick (1915), 168 App. Div. 5538, 153 N. Y. Supp. 188, affd., 215 N. Y. 339. ARTICLE II. WHEN THE WRIT LIES; BY WHAT COURT GRANTED. (Fiero, Spec. Pro., 3rd Ed., pp. 1550-1559.) Supp. 1. When the writ issues. 2. When the writ does not lie. 3. By what court granted. Subd, 1. When the Writ Issues. (Fiero, Spec. Pro., 3rd Ed., pp. 1550-1552.) The writ of prohibition is the proper remedy where a board of public officers are about to perform an illegal act quasi-judicial in its nature. People ex rel. Pintler v. Transue (1911), 74 Mise. 504, 132 N. Y. Supp. 497. The superintendent of public works in awarding contracts for work on the Barge canal acts in a quasi-judicial capacity and if in acting on bids and awarding contracts he proceeds unlawfully, a writ of prohibition will lie. People ex rel. Jordan v. Wother- spoon (1916), 94 Misc. 419, 157 N. Y. Supp. 923. PROHIBITION, 851 A writ of prohibition is the proper remedy to prevent a publi¢ service commission from hearing an application of a street rail way company for an increase in fare from five to six cents where a contract between the city and the railway provides that only a fivecent fare shall be charged. Matter of Quinby v. Public Service Comm. (1918), 223 N. Y. 244, A writ of prohibition is the proper remedy to prevent the acts of a court that may be such de facto but is not de jure. People ex rel. Childs v. Extraordinary Trial Term (1918), 184 App. Div. 829, 171 N. Y. Supp. 922. Where, after the judgment of conviction had been reversed and a new trial ordered, the justice of the peace, who had convicted relator, by telephone commanded him to appear for trial on the original warrant, relator pending an adjournment of the proceed- ings before said justice will be granted an alternative writ of prohibition commanding him to desist and refrain from any and all further proceedings on the information and warrant and from proceeding with the trial of relator thereon. People ex rel. Wat- son v. Lamphier (1918), 104 Mise. 622, 172 N. Y. Supp. 247. Subd. 2. When the Writ Does Not Lie. (Fiero, Spec. Pro., 3rd Ed., pp. 1552-1558.) When the defendant in an action instituted in an inferior court, pleads to the jurisdiction of such court, and his plea is overruled, no sufficient cause is presented for granting a prohibition, since ample remedy may be had by an appeal from the final judgment in the cause. Kantrowitz v. Brooklyn, Q. C. & 8S. R. R. R. R. (1916), 173 App. Div. 189, 159 N. Y. Supp. 23. As the only function of a writ of prohibition is to prevent a court or a judicial officer from acting without or in excess of its or his jurisdiction, such a writ should not be granted to restrain a justice of the Supreme Court from granting leave to inspect the minutes of the grand jury, for he has power to make such order. People ex rel. Martin v. Brady (1915), 168 App. Div. 108, 153 N.Y. Supp. 893. Where a justice of the Supreme Court in one county, upon the petition of a prisoner detained for trial in the Supreme Court in session in an adjoining county issued a writ of habeas corpus re- turnable before himself, an application for a writ of prohibition 852 PROHIBITION. against such justice before he had an opportunity to consider the objection to his jurisdiction in making the writ returnable before himself, instead of before the court, should be denied. People ex rel. Whitman v. Woodward (1912), 150 App. Div. 770, 135 N. Y. Supp. 373, 25 N. Y. Cr. 354. A writ of prohibition will not be granted against a superin- tendent of city schools to prevent an appeal to the commissioner of education from the act of the board of education in placing a large number of persons on the eligible list for teachers whom the superintendent believes should not be placed on such list. People ex rel. Board of Education v. Finley (1914), 211 N. Y. 51. Where it appears that the relator with knowledge of the pro- gress of the work along the altered route of the Barge canal dur- ing seven or eight years stood by without protest or objection until most of the work had been completed, he is guilty of inexcusable laches which alone would be a sufficient reason for the denial of a motion for a writ of prohibition to prevent the superintendent of public works from awarding a contract for completing a por- tion of the canal. People ex rel. Jordan v. Wotherspoon (1916), 94 Mise. 419, 157 N. Y. Supp. 923. Where a judgment in favor of plaintiffs, in an action brought in the peacemaker’s court of the Cattaraugus Indian reservation for the partition of certain lands therein, has been affirmed on appeal to the council of the nation, the Supreme Court has no jurisdiction to interfere by a writ of prohibition and prevent the sale of lands pursuant to the judgment. People v. Shongo (1913), 83 Misc. 325, 144 N. Y. Supp. 885, affd., 164 App. Div. 908, 148 N. Y. Supp. 1187. While, zt seems, that a writ of prohibition may le to restrain the action of justices of the Supreme Court of the First or Second Judicial Departments from ordering a summary public examina- tion of certain public officers and heads of departments of the city of New York under section 1534 of the city charter, this extra- ordinary remedy should not be granted where there is a sufficient remedy by a motion to vacate the order for examination made under said section. Matter of Mitchel v. Cropsey (1917), 177 App. Div. 663, 164 N. Y. Supp. 336. The appointment by the Governor of an extraordinary term of the Supreme Court does not limit the power of said court, and PROHIBITION. 853 whether motions for new trials in actions therein referred to may be heard at said term, and in the event of new trials whether the issues may be tried thereat are questions for the judiciary and should, in the first instance, be determined at Special or Trial Term and not by the Appellate Division upon the application for a writ of prohibition. People ex rel. Saranac L. & T. Co. v. Supreme Court (1917), 177 App. Div. 378, 166 N. Y. Supp. 132. Where the Governor directed that notice of an extraordinary term of the Supreme Court be published in two newspapers, but the notice was published in one paper only, the extraordinary term is not properly convened, and as the justices appointed have no jurisdiction, a writ of prohibition should issue to prevent action by them. Matter of McIntyre v. Sawyer (1917), 179 App. Div. 535, 166 N. Y. Supp. 631. Such writ should issue, although one extraordinary term appointed by the Governor was noticed by a single publication and a subsequent term to be presided over by a different justice was also noticed by a single publication, if the second order for the term did not refer to the first order. Matter of McIntyre v. Sawyer (1917), 179 App. Div. 535, 166 N.Y. Supp. 631. Although there is no authority therefor in the Code of Criminal Procedure, the court in its inherent jurisdiction over practice and procedure may entertain a motion to strike from an indictment scandalous and irrelevant matter not charging a crime. Hence, an absolute writ of prohibition will not issue to prevent a justice from striking out such matter. People ex rel. Weeks v. Platt (1916), 173 App. Div. 451, 159 N. Y. Supp. 920. As the Supreme Court at Special Term has jurisdiction to determine the sanity of a person on a writ of habeas corpus, it cannot be prevented by a writ of prohibition from calling a jury to aid it in determining the question of sanity, as this falls within the class of errors in procedure for which there is an adequate remedy by appeal. People ex rel. Woodbury v. Hendrick (1915), 915 N. Y. 339, affg., 168 App. Div. 558, 153 N. Y. Supp. 188. The writ of prohibition will not be allowed to guard against a future apprehended error of an inferior tribunal when such tribunal upon due objection may not commit such error, and if it does commit it, the aggrieved party may be fully and adequately protected by the ordinary process of appeal or review. City of 854 PROHIBITION, New York v. Public Service Comm. (1918), 104 Mise. 306, 171 N. Y. Supp. 830. Subd. 3. By What Court Granted. (Fiero, Spec. Pro., 8rd Ed., pp. 1558-1559.) An application for an absolute writ of prohibition to enjoin the further hearing upon a writ of habeas corpus should be made to the Appellate Division of the department where the writ of habeas corpus originated and not to the Appellate Division of an adjoining department, where at the time the alternative writ was granted the justices of the first mentioned Appellate Division were in attendance at the court house ready to attend to any court business presented, although the court had taken a recess, but had not adjourned. People ex rel. Whitman v. Woodward (1912), 150 App. Div. 180, 184 N. Y. Supp. 910. Upon a motion for a writ of prohibition commanding the superintendent of public works to refrain from awarding a con- tract for completing the construction of the Barge canal between certain points the Special Term within the judicial district where the material facts occurred has jurisdiction. People ex rel. Jordan v. Wotherspoon (1916), 94 Mise. 419, 157 N. Y. Supp. 923. ARTICLE ITI. THE ALTERNATIVE WRIT AND PROCEEDINGS THEREON. (Fiero, Spec. Pro., 3rd Ed., pp. 1559-1560.) Cope Civ. Pro., § 2091. Kinds of writ; how granted. Code Civ. Pro., § 2091. Kinds of writ; how granted. A writ of prohibition is either alternative or absolute. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor. Previous notice of the application must be given to a judge of the court, or to the corporation board, or other body, officer, or other person to which or to whom it is directed. Amended by L. 1918, ch. 573. ARTICLE VI. QUASHING THE WRIT, STAY OF PROCEEDINGS AND APPEAL. (Fiero, Spec. Pro., 8rd Ed., p. 1562.) Cope Civ. Pro., § 2101. Appeals. PROHIBITION. 855 Code Civ. Pro., § 2101. Appeals. An order granting or denying an application for an alternative writ of prohibition, and a final order, made as prescribed in the last section, can be reviewed only by appeal. Where the order was made by the appel- late division, the execution of the order appealed from shall not be stayed, except by an order, made at a term of the appellate division in the same department upon such terms, as to security or otherwise, as justice requires. Amended by L. 1918, ch. 573. PROPERTY OF PERSON CONFINED FOR CRIME. See Crrmz, Care oF Property or Person Conrivep For. PUBLIC OFFICERS, PROCEEDINGS TO COMPEL DELIVERY OF BOOKS AND PAPERS. (Fiero, Spec. Pro., 3rd Ed., pp. 1575-1587.) Where a supervisor was illegally elected superintendent of the poor, and having qualified, immediately resigned, but was subse- quently appointed to said office when his term as supervisor ex- pired, he is not entitled to compel the prior incumbent of the office to turn over the books and papers by a proceeding brought under section 80 of the Public Officers Law. Close v. Burden (1914), 163 App. Div. 88, 148 N. Y. Supp. 773. PUBLIC SERVICE COMMISSION. (Fiero, Spec. Pro., 3rd Ed., pp. 1588-1636.) Art. I. Powers and duties of commission. II. Procedure before commission. III. Review of determination of commission by certiorari. ARTICLE I. POWERS AND DUTIES OF COMMISSION. (Fiero, Spec. Pro., 8rd Ed., pp. 1588-1594.) The section of the Public Service Commissions Law conferring power on the Commission to regulate railroad rates for the public convenience and welfare is constitutional. People ex rel. N. Y., N.H. é H.R. BR. Co. v. Public Service Commission (1914), 159 App. Div. 531, 145 N. Y. Supp. 503, affd., 215 N. Y. 689. A Public Service Commission has no authority to hear and deter- mine the application of a street railway company for an increase of fare from five to six cents where the contract between the city and the railway provides that only a five-cent fare may be charged. Matter of Quinby v. Public Service Comm. (1918), 223 N. Y. 244, The Public Service Commission has no authority to dictate as to how money in the treasury of a public service corporation shall 856 PUBLIC SERVICE COMMISSION. 857 be disbursed. If a corporation is actually entitled to issue bonds the Commission has no power to affix as a condition some act that it has no jurisdiction to compel; but it has power in an order granting consent to impose a condition based upon facts which justify the order with the condition. People ex rel. Kings County Lighting Co. v. Straus (1917), 178 App. Div. 840, 166 N. Y. Supp. 196. The language of sections 55 and 69 of the Public Service Commissions Law establishes the conclusion that the com- missions are not empowered to authorize the issue of securities upon the application of a corporation which has not received the permission and approval provided in sections 53 or 68 of such law. People ex rel. New York Hdison Co. v. Willcox (1912), 207 N. Y. 86, 94, revg., 151 App. Div. 832, 186 N. Y. Supp. 1031. The Public Service Commission has no authority to assume the powers of a court of equity and to determine as to the respective rights of various corporations to the use of a certain corporate name. People ex rel. N. Y. Tel. Co. v. Pub. Serv. Com. (1913), 157 App. Div. 156, 141 N. Y. Supp. 1018. The Public Service Commissions Law did not confer upon the Commission the power of a court of law or equity to adjudicate private rights between an electrical corporation and others. Public Service Commission, 2nd District (1916), 9 State Dept. Rep. 209. The maintenance or withdrawal of a siding is initially a matter between the shipper and the carrier, and the intervention of the Public Service Commission is unauthorized unless the parties have been unable to agree. Adikes v. Long Island R. R. Co. (1914), 165 App. Div. 221, 151 N. Y. Supp. 49. It has been held, that the Public Service Commission has no authority over a side track which had been maintained by a railroad on the property of a shipper for several years without any express agreement, and cannot control or modify an agreement between the parties limit- ing liability for injury to the property and to the officers and employees of the shipper. People ex rel. Hrie R. R. Co. v. Public Service Commission (1916), 176 App. Div. 28, 162 N. Y. Supp. 520, affd., 220 N. Y. 674. Likewise it has been held that the Commission may not require a railroad company to construct switches upon property not owned by it. People ex rel. L. I. R. R. Co. v. Public Service Commission (1915), 170 App. Div. 429, 156 N. Y. Supp. 198. But see subdivision 3 of section 27 858 PUBLIC SERVICE COMMISSION. added in 1917, with the apparent intention of overcoming the effect of these decisions. The Public Service Commission, before the outbreak of the present European war, having directed a street railroad company to make certain additions to its equipment, should grant a rehear- ing asked for upon the ground that because of said war the rail- road company cannot raise the money necessary to carry the order into effect. People ex rel. United Traction Co. v. Public Service Commassion (1915), 167 App. Div. 498, 153 N. Y. Supp. 542. The Commission has no power to order a carrier to refund past charges. Murphy v. New York Central R. R. Co. (1915), 170 App. Div. 788, 156 N. Y. Supp. 49. An elevator built by a real estate company on its own land in order to carry persons who live on its land and lots sold by it from one street to another, and which also carries any person who “railroad” or a ‘“eommon carrier,’ and the Public Service Commission has no jurisdiction over the real estate company or authority to regulate the rates of fare charged by it. People ex rel. Kelly v. Public Service Commission (1916), 171 App. Div. 810, 157 N. Y. Supp. 708. The establishment of stations requiring adequate facilities for the traveling public is peculiarly within the power of the Public Service Commission. People ex rel. L. I. R. R. Co. v. Public Service Commission (1916), 1738 App. Div. 780, 160 N. Y. Supp. 638. The power of the Public Service Commission over gas com- panies is confined to their operations as public utilities, and has no concern to the private controversies which they may have with others. Public Service Comm., 2d Dist. (1916), 10 State Dept. Rep. 415. The Commission has jurisdiction to compel the location and wishes to ride and who pays his fare, is not a erection of a farm crossing as provided in section 52 of the Rail- road Law. Opinion Public Service Commission, 2nd District (1915), 3 State Dept. Rep. 118; Wadsworth v. Erie R. R. Co. (1915), 4 P. S.C. R. (2d Dist.) 421. When a rate or form of contract has been filed and published and has become effective, a consumer who believes that such rate ig unjust or unreasonable is within his rights when he complains PUBLIC SERVICE COMMISSION. 859 to the Commission, and the Commission also is acting legally if it issues an order granting relief, provided it finds that the properly established rate is unjust or unreasonable, although no service contracts have yet been made, nor any charges actually billed or collected, under the rate in question. Lakes & Co. v. New York Fidison Co. (1913), 4 P. 8. C. R. (1st Dist.), 138. The Commission, and not a private individual, has the authority to commence an action to compel compliance by a street railroad earrier with a franchise obligation to construct and operate a street railroad extension. Matter of New York and Queens County Ry. Co. (1914), 5 P. S.C. R. (Ast Dist.), 334, 3 State Dept. Rep. 21. The Commission has no jurisdiction to determine the manner in which a railroad track constructed by the State pursuant to au- thority conferred by the Legislature shall be carried across high- ways. Matter of New York Central & H. R. R. R. Co. (1911), 2 P.S. C. R. (2d Dist.) 682. The Commission has jurisdiction of the receivers of a street railway company, and may prohibit the discontinuance of a branch line without the consent of the Commission. Matter of Cayuga Heights Line of the Ithaca Street Railway Company (1912), 3 P.S. C. R. (2d Dist.) 442. The proprietor of a parcel room, occupying leased space in a railroad station, is not subject to the supervision of the Commis- sion and is under no duty to reveal its profits or submit to a gen- eral inspection of its books. Matter of Public Service Commias- ston (1915), 214 N. Y. 46, affg., 162 App. Div. 371, 147 N. Y. Supp. 603. The Commission has no jurisdiction to control the sale of periodicals and books at railway news stands. Smith et al. v. Interborough Rapid Transit Co. (1910), 2 P. S.C. R. (1st Dist.) 441. ARTICLE IT. PROCEDURE BEFORE COMMISSION. (Fiero, Spec. Pro., 3rd Ed., pp. 1594-1620.) Although under the Public Service Commissions Law man- damus may be an appropriate process for the purpose of having violations, or threatened violations, of anything required of a common carrier by law or by order of the Commission stopped and 860: PUBLIC SERVICE COMMISSION. prevented, where the only failures of the carrier to obey the order of the Commission were at specified hours on two days named, each about two months before the proceeding was commenced, the court is not as matter of law required to grant the writ. Matter of Public Service Commission v. Interborough Rapid Transit Co. (1916), 219 N. Y¥. 355, affg., 172 App. Div. 324, 158 N. Y. Supp. 480. Upon an application by a railroad company for a certificate of public convenience, although no specific notice to property owners is required, the Commission has power to order that notice be given. Matter of Frontier & Western Railroad Co. (1913), 155 App. Div. 57, 189 N. Y. Supp. 627. The jurisdiction given under section 72 of the Public Service Commissions Law contemplates a proceeding or investigation in- stituted upon complaint of the form prescribed in section 71. Matter of New York & Queens Gas Co. (1915), 6 P. S. C. R. (1st Dist.), 40, 4 State Dept. Rep. 26. The rule that, in all proceedings instituted before the Public Service Commission against public service corporations to review a change of rates, the burden rests on the complainants to prove that the rates complained of are unreasonable, has been abrogated by chapter 240 of the Laws of 1914, in so far as it relates to common carriers, but remains in force as to all other public service corporations. Hence, where the complainants against a telephone company have failed to discharge the burden cast upon them by this rule, an order of the Public Service Commission fixing rates should be reversed. People ex rel. New York Telephone Co. v. Public Service Commission (1915), 169 App. Div. 448, 154 N.Y. Supp. 1093. Burden of proof is upon the carrier to show that a proposed increase in rates is just and reasonable. Opinion Public Service Commission, Second District (1916), 9 State Dept. Rep. 118, 195. A rehearing will not be granted for the presentation of new matter, without sufficient reason being presented whv such matter was not brought to the attention of the commissioner on the first hearing. Matter of Employees of Halcomb Steel Company v. Syracuse, Lake Shore and Northern Railroad Company (1912), 3 P.8.C. R. (2d Dist.) 424. Where the finding of a commission as to value of property of a railway company has been disapproved PUBLIC SERVICE COMMISSION. 861 and its order annulled and set aside by the Appellate Division the proceeding should be remitted to the commission for further ac- tion, and either party to the proceeding be allowed to present further testimony relating to the question of value. People ex rel. Westchester St. R. R. Co. v. Public Service Comm. (1914), 210 N. Y. 456. Where a carrier has failed to comply with the requirements of its charter and franchise, the Commission has its election whether to make an order under section 48 of the Public Service Commis- sions Law or to apply for a writ of mandamus under section 57. . W. Bliss Co. v. Jay Street Connecting R. R. (1913), 4 P. S. C. R. (1st Dist.) 210; Matter of New York and Queens County Ry. Co. (1914), 5 P.S. C. R. (1st Dist.) 9, 1 State Dept. Rep. 8. ARTICLE III. REVIEW OF DETERMINATION OF COMMISSION BY CERTIORARI. (Fiero, Spec. Pro., 3rd Ed., pp. 1620-1622.) Hearings and determinations of Public Service Commissions are deemed judicial or quasi-judicial proceedings and are subject to review by the writ of certiorari. People ex rel. Brooklyn Heights R. R. Vo. v. Public Service Comm. (1918), 157 App. Div. 698, 142 N. Y. Supp. 942. Although the Appellate Division has authority to review the action of a Public Service Commission on questions of law, it will not determine whether or not the commissioners arrived at the best solution of the questions before them. Matter of New York Central Railroad Co. (1917), 177 App. Div. 444, 164 N. Y. Supp. 310. An order of the Public Service Commission overruling a de- murrer to a complaint is not reviewable by certiorari. People ex rel. Pennsylvania Gas Co. v. Public Service Comm. (1917), 181 App. Div. 147, 168 N. Y. Supp. 59. The Appellate Division does not have the power on a writ of certiorari to determine that an order of the Public ‘Service Com- mission is unreasonable in the sense that it is an unwise or in- expedient order, but only that it is unreasonable if it is an un- lawful, arbitrary or capricious exercise of power. The Appellate Division has no power to substitute its own judgment of what is reasonable in place of the determination of the Public Service 862 PUBLIC SERVICE COMMISSION. Commission, and it ¢an only annul the order of the Commission for the violation of some rule of law. People ex rel. New York & Queens Gas Co. v. McCall (1916), 219 N. Y. 84, revg., 171 App. Div. 580, 157 N. Y. Supp. 707. Where the allegations of a petition for a writ of certiorari to review an order of the Public Service Commission directing the relators to provide additional cars for public use on their several vailroads are not supported by any allegations of fact, and taken as a whole amount to nothing more than a sworn statement that the Commission was wrong in making the order sought to be reviewed, and it appears that the relators have had an opportunity to supplement the bare allegations of their petitions by replying affidavits and have failed to do so, and an examination of all of the papers fails to disclose a single fact from which it can be judicially determined that the order of the Commission is even prima facie unreasonable, unwarranted or unlawful the court can- not determine that there is reasonable ground to believe that error has been committed, and motions to quash the writs will be granted. People ex rel. B. H. R. R. Co. v. Public Service Comm. (1917), 101 N. Y. 10. Rehearing.— An order of a Public Service Commission deny- ing an application for a rehearing cannot be reviewed by a writ of certiorari if it does not appear that the Commission has abused its discretion. People ex rel. N. Y. & Queens Gas Co. v. Straus (1918), 182 App. Div. 666. Where an order of a Public Service Commission was reviewed by certiorari and finally in effect affirmed by the United States Court of Appeals, and on a subsequent rehearing had before the Commission an annulment of the order was refused, and upon a hearing of a second writ of certiorari, the Appellate Division declined to interfere because of no showing of any abuse of dis- cretion, it was held, that a motion by said Commission under section 74 of the Public Service Commissions Law for a writ of mandamus to compel respondent’s obedience to its order will be granted. Public Serv. Comm. v. New York & Queens G. Co. (1918), 103 Mise. 702. QUIETING TITLE TO REAL PROPERTY. (Fiero, Spec. Pro., 8rd Ed., p. 1637.) REAL ESTATE OF CORPORATION — STATE WRITS. 863 REAL ESTATE OF CORPORATION. See Corporate Rear Estars, Save or. REAL PROPERTY. See Inrant, Sate or Rear Esrare or; Corporate Rear Estate, Satz or; Discuarce or Morreaces or Recorp; Quietine TitLte to Rear Property; Susmary Proceep- ines TO Recover Reat Properry. REAL PROPERTY, CONDEMNATION OF. See ConpEMNATION OF REAL PROPERTY. RECEIVER OF CORPORATION. See Corporation, REcEIVER oF. REMOVAL OF TRUSTEE. See Truster, Restenation, RemMovart, anp APPOINTMENT OF. SALE OF CORPORATE REAL ESTATE. See Corporate Rear Estate, Sale or. SALE OF INFANTS’ REAL ESTATE. See Inrant, Sate or Reat Esvrare or. SPECIAL FRANCHISES, ASSESSMENT OF, HOW REVIEWED. See Tax Law, Crertrorart to Revirw AssEssMENT. STATE BOARD OF TAX COMMISSIONERS, PROCEEDINGS, HOW REVIEWED. See Tax Law. STATE WRITS. See Crrtiorart; Hapeas Corpus anp Writ oF CERTIORARI; Haseas Corpus to Brine Up a Person to Trstiry; Manpamus; Prouipirion; Stare Writs EnuMERATED AND DEFINED. STATE WRITS ENUMERATED AND DEFINED. (Fiero, Spec. Pro., 8rd Ed., pp. 1638-1648.) Art. I. State writs enumerated and defined. II. Regulations as to state writs. III. Service of state writs and obedience thereto, ARTICLE I. STATE WRITS ENUMERATED AND DEFINED. (Fiero, Spec. Pro., 3rd Ed., pp. 1639-1643.) Certiorari is a common-law writ known from early times and issued by the King’s Bench, the jurisdiction of which became vested in the Supreme Court of this State, and the method of the exer- cise of which is prescribed by the Code of Civil Procedure. People ex rel. Republican and Journal Co. v. Lazansky (1913), 208 N. Y. 435. ARTICLE II. REGULATIONS AS TO STATE WRITS. (Fiero, Spec. Pro., 3rd Ed., pp. 1643-1645.) The requirement, that a writ of mandamus awarded upon the application of a private person must show that it was issued upon the relation of that person, is not dispensed with by anything in the provisions of section 2070. People ex rel. Dunphy v. Chaney (1916), 171 App. Div. 303, 156 N. Y. Supp. 1035. ARTICLE III. SERVICE OF STATE WRITS AND OBEDIENCE THERETO. (Fiero, Spec. Pro., 3rd Ed., pp. 1646-1647.) Upon the demand of a relator accompanied by the tender of the fees as prescribed by law, it is the duty of the State Board of Tax Commissioners to furnish sworn and certified copies of the papers incorporated into a return by reference, but it is dis- cretionary with the Board to permit inspection of its records with a privilege of making copies of the same. Attorney-General Rep. (1912), 406. STOCK OF CORPORATION, APPRAISAL OF. See Corporation, APPRAISAL OF STock oF. 864 SUMMARY PROCEEDINGS TO RECOVER THE POSSESSION OF LAND. (Fiero, Spec. Pro., 3rd Ed., pp. 1649-1753.) Art. I. When tenant may be removed. II. When person continuing in possession of real property may be removed. III. Forcible entry and detainer. IV. Jurisdiction. V. Petition by person entitled to possession. VI. Precept, how served. VII. Answer and defenses. VIII. Trial, evidence and matters of practice. IX. Final order, and its effect. X. The warrant and its effect upon the lease. XI. Stay of proceedings. XII. Redemption. XIII. Appeal and restitution. A ARTICLE I. WHEN TENANT MAY BE REMOVED. (Fiero, Spec. Pro., 3rd Ed., pp. 1651-1675.) Supp. 1. Code and statutory provisions. CopE Civ. Pro., § 2281. When tenant may be removed. 2. By and against whom proceeding can be maintained. 3. Tenant holding over his term. Notice to quit; when required. 4. When tenant fails to pay rent, taxes, or assessments. Subd. 1. Code and Statutory Provisions. (Fiero, Spec. Pro., 3rd Ed., pp. 1651-1653.) Code Civ. Pro., § 2231. When tenant may be removed. In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, including a specific or undivided portion of a house or other dwelling, and his assigns, under-tenants, or legal representatives, may be removed therefrom, as pre- scribed in this title: 1. When he holds over and continues in possession of the demised prem- ises, or any portion thereof, after the expiration of his term, without the permission of the landlord; including, elsewhere than in the city of New York and Brooklyn, a case where the person to be removed became the occupant of the premises as a servant or employe dnd the relation of master and servant or employer and employe has been lawfully terminated or the time fixed for such occupancy by the agreement between the parties, has expired; but if by such agreement the servant was to be permitted to oceupy 55 865 866 SUMMARY PROCEEDINGS TO such premises for a period beyond the term of employment such removal shall not be had under this subdivision unless such period so permitted for occupancy has expired, or the relation of master and servant or employer ‘and employe was lawfully terminated before the expiration of such term of employment; but nothing in this subdivision contained shall be construed as preventing the removal of such occupant in any other lawful manner. 2. Where he holds over, without the like permission, after a default in the payment of rent, pursuant to the agreement under which the demised premises are held, and a demand of the rent has been made, or at least three ‘days’ notice in writing, requiring, in the alternative, the payment of the rent or the possession of the premises, has been served, in behalf of the person entitled to the rent, upon the person owning it, as prescribed in this title for the service of a precept. 3. Where in any city in this state he holds over and continues in posses- sion of the demised premises, or any portion thereof, after default in the payment, for sixty days after the same shall be payable, of any taxes or assessment levied on such demised premises which he has agreed in writing to pay pursuant to the agreement under which the demised premises are held, and a demand for the payment of such taxes or assessments has been made, or at least three days’ notice in writing, requiring, in the alternative, the payment thereof and of any interest and penalty thereon, or the posses- sion of the premises, has been served, in behalf of the landlord, upon the lessee, as prescribed in this title for the service of a precept. An acceptance of any rent by the lessor or his legal representatives shall not be construed as a waiver of the agreement of the lessee to pay taxes or assessments, so as to preclude the lessor from the benefits of this chapter. 4. Where he, being in possession under a lease for a term of three years or less, has, during the term, taken the benefit of an insolvent act, or has been adjudicated a bankrupt, under a bankrupt law of the United States. 5. For making and certifying a copy of a will, or paper on file or redirect- ing that, in default thereof, he be removed or his letters be revoked. 6. Where the demised premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons. or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business. Amended by L. 1918, ch. 448. Subd. 2. By and Against Whom Proceedings Can Be Maintained. (Fiero, Spec. Pro., 8rd Ed., pp. 1653-1662.) The right to institute summary proceedings is dependent on the existence of the conventional relation of landlord and tenant be tween the parties. Mifth Avenue Shop v. Fou-Steifel Co. (1913), 83 Mise. 127, 144 N. Y. Supp. 705. A tenant under a new lease cannot maintain summary proceedings against a preceding tenant holding over. Hells v. Morse (1913), 208 N. Y. 103, affg.. 142 App. Div. 592. 127 N. Y. Supp. 43s. Where a summary proceeding for nonpayment of rent is RECOVER THE POSSESSION OF LAND. 867 brought only against the original tenant, the rights of his assignee of the lease who is not a party to the proceeding and was not served are not affected. Matter of Barney v. DuVivier (1914), 86 Mise. 29, 147 N. Y. Supp. 913. The institution of an action of ejectment against a tenant for failure to pay rent, upon the ground of condition broken, termi- nates the relation of landlord and tenant, and while the action is pending the landlord cannot maintain summary proceedings for nonpayment of rent. Janes v. Paddell (1911), 74 Misc. 409, 132 N. Y. Supp. 379. Where a lease provides that the yearly rent shall be the pay- ment of a certain sum, and in addition, the interest on a first mortgage on the property together with the taxes, water rates and assessments against it, the reservation of the rates, etc., as rent is sufficient to sustain summary proceedings because of their nonpayment. Mulligan v. Kraus (1915), 88 Mise. 538, 151 N. Y. Supp. 401. Summary proceedings should be dismissed where the uncon- troverted evidence shows that the tenant was not in possession at the time the proceeding was instituted, and was not holding over or claiming any rights as tenant of the premises. Warrin v. Haverty (1912), 149 App. Div. 564, 133 N. Y. Supp. 959. But where, at the institution of summary proceedings to dispossess a tenant, he claims possession of the premises, but is not in posses- sion, the court has jurisdiction. Equitable Trust Co. v. King (1913), 83 Mise. 450, 145 N. Y. Supp. 94. A receiver pendente lite of mortgaged premises cannot dis- possess the mortgagor by summary proceedings for nonpayment of rent. Curren v. Gillam (1919), 106 Mise. 652, 176 N. Y. Supp. 573. Subd. 3. Tenant Holding Over His Term. Notice to Quit; When Required. (Fiero, Spec. Pro., 8rd Ed., pp. 1662-1669.) A landlord can maintain summary proceedings to remove a tenant holding over after the expiration of the term, although he has made a new lease of the premises to begin upon the expiration of the term of the tenant in possession. Fells v. Borse (1913), 208 N. Y. 103. 868 SUMMARY PROCEEDINGS TO Where a landlord accepts from the trustee in bankruptcy of his tenant the rent for the month in which he sold the bankrupt’s interest in the lease, a summary proceeding for holding over com- menced on the last day of said month should have been dismissed on the ground that it was prematurely instituted. Webendorfer v. Landau (1915), 89 Mise. 129, 151 N. Y. Supp. 504. A tenant in possession under an invalid lease is a tenant at will, and a petition in summary proceedings for his removal which does not allege that he was given the notice required by section 228 of the Real Property Law is jurisdictionally defective; but where the tenant enters a general appearance, goes to trial upon the merits and makes no motion in regard to such defect, it is waived. Carman v. Fou (1914), 86 Mise. 197, 149 N. Y. Supp. 213. Where a person becomes the occupant of premises as an incident to his employment for the purpose of enabling him better to per- form his services, his right to oceupy the premises ceases when the relation of master and servant is terminated, and the master may institute a summary proceeding for his removal. Shufelt v. Boyles (1914), 88 Misc. 133, 151 N. Y. Supp. 783. The mere breach of a condition in a lease that the lease should expire on the tenant’s failure to maintain a first-class flower stand, and to keep the premises occupied by him and the adjoin- ing pavement, free of refuse, does not give the landlord the right to institute summary proceedings on the ground that the tenant held over after the termination of his estate. Fufth Ave. Building Co. v. Potaras (1912), 78 Mise. 150, 187 N. Y. Supp. 896. Where a subtenant holds over in violation of a covenant to surrender possession at the expiration of the term the tenant may dispossess him and then sue for damages for breach of the covenant to surrender. Phelan v. Kennedy (1919), 185 App. Div. 749, 173 N. Y. Supp. 687. See also, Fifty-Yourth Street Really Co. v. Goodman (1913), 80 Mise. 639, 141 N. Y. Supp. 959. Subd. 4. When Tenant Fails to Pay Rent, Taxes, or Assessments. (Fiero, Spec. Pro., 8rd Ed., pp. 1669-1674.) Where a landlord repeatedly refuses to accept rent from his tenant, he cannot maintain summary proceedings to dispossess RECOVER THE POSSESSION OF LAND, 869 the tenant for nonpayment of rent. Janes v. Paddell (1911), 74 Misc. 409, 132 N. Y. Supp. 379. Where the landlord’s evidence shows that no demand was made on the tenant for the rent, the proceeding should be dismissed on the tenant’s motion made at the conclusion of the trial. Haleyou Real state Corporation v. Van Bayer (1915), 155 N. Y. Supp. 351, Where a landlord serves notice on his tenant that the lease is terminated for nonpayment of rent, the institution of summary proceedings under subdivision 1 of section 2231 of the Code against the tenant as a holdover is not an election which bars a proceeding against the tenant for nonpayment of rent under sub- division 2 of such section upon the abandonment of the former proceedings. /ifty-Fourth Street Realty Co. v. Goodman (1913), 80 Mise. 639, 141 N. Y. Supp. 959. Where a lease provides that upon the tenant's failure to keep the premises in good order and repair, the landlord shall have the right to make such repairs and add the cost to the rent due for the following month, and that such cost ‘ shall be and constitute such rent” together with the rent reserved, summary proceedings are maintainable to recover as *‘ rent” the cost of such repairs. Knepper v. Rothbaum (1918), 104 Mise. 554, 172 N. Y. Supp. 109. ARTICLE II. WHEN PERSON CONTINUING IN POSSESSION OF REAL PROPERTY MAY BE REMOVED. (Fiero, Spec. Pro., 3rd Ed., pp. 1675-1679.) Supp. 1. Sale on execution or under foreclosure. 3. Removal of squatters. Subd. 1. Sale on Execution or Under Foreclosure. (Fiero, Spec. Pro., 3rd Ed., pp. 1675-1678.) A purchaser of real property at a judicial sale who finds others in possession cannot, except in the particular cases provided for by section 2232 of the Code of Civil Procedure, without further proof assume that they are his tenants, and cannot by service of a thirty days’ notice have the benefit of summary proceedings which are applicable only where the conventional relation of land- 870 SUMMARY PROCEEDINGS TO lord and tenant is shown to exist. Mulligan v. Gabbett (1917), 101 Mise. 253, 167 N. Y. Supp. 558. Subd. 3. Removal of Squatters. (Fiero, Spee. Pro., 8rd Ed., pp. 1678-1679.) A squatter is one who settles on the lands of another without any legal authority, and an intruder is one who enters upon prop- erty where he has no right, or one who, after the death of an ancestor, enters upon land unlawfully, before the heir can enter. The use by the Legislature of the words “squatter” and “ in- truder in the statutes affecting possession of real property does not include persons other than those within the ordinary meaning of the words. Williams v. Alt (1919), 226 N. Y. 283, A proceeding for the summary removal of a tenant wrongfully holding the possession of real property is purely statutory and can only be taken where the conventional relation of landlord and tenant exists. Walliams v. Alt (1919), 186 App. Div. 285, 174 N. Y. Supp. 460. In a summary proceeding to dispossess a person on the ground that he had entered into possession without the consent of peti- tioner, who claimed to be entitled to possession under a lease from the alleged owner, no question. of title is raised by an answer deny- ing the alleged ownership and right to possess. People ex rel. Hill v. Kelsey (1913), 82 Misc. 491, 144 N. Y. Supp. 135. Where the terms of a lease indicate that the use of a toilet room by the tenant as appurtenant of the premises occupied by her was plainly contemplated the provisions of section 2232 of the Code of Civil Procedure do not apply. Belrose Realty Co. v. Maier (1913), 144 N. Y. Supp. 320. The presence of the husband on the premises at the time of the wite’s death does not constitute a legal occupancy. And where the legal title was in the wife and where immediately upon her death the title descended to the heirs at law the husband becomes an intruder and may be ousted by summary proceedings. Newman vy. O'Rourke (1914), 149 N. Y. Supp. 514. An occupant in lawful possession under a lease from a life tenant for a term of years becomes a trespasser under section 1664 of the Code of Civil Procedure upon refusal to yield posses- sion of said premises after the death of the life tenant, and the RECOVER THE POSSESSION OF LAND. 871 remedy of the owners is by action in ejectment and not by sum- mary proceedings under sections 2231 and 2232 of the Code of Civil Procedure, since the conventional relation of landlord and tenant does not exist and the occupant is not such a trespasser as may be removed through such proceedings. Waelliams v. Alt (1919), 186 App. Div. 235, 174 N. Y. Supp. 460. Testator devised certain real property to his son and his wife during their joint lives. The wife dying after the testator, the son again married, and before his death leased the property so devised to one of the respondents. Held, first, that the second wife has no interest in the real property so devised; second, that when the son died, the lease made by him as owner of a life estate in the real property to the respondent terminated. (Code Civ. Pro., § 1664.) Therefore, from the death of the son the tenant was a trespasser as were his subtenants, and the reversioners, owners of the fee, were entitled to the possession of the property. Third, that on the refusal of the respondent and his subtenants to deliver possession of the property to the appellants, who succeeded to the title, they were not entitled to maintain summary proceedings to obtain possession. The respondent and his subtenants, while trespassers, are not squatters and the provisions of subdivision 4 of section 2232 of the Code of Civil Procedure do not apply. Williams v. Alt (1919), 226 N. Y. 283. Where a husband and wife are living together upon premises cwned by her he is not a squatter or an intruder upon the prop- erty within the meaning of section 2232(4) of the Code of Civil Procedure, and her petition thereunder to oust him as a squatter must be dismissed, though it is alleged that the permission given to him to occupy the premises had been revoked and notice thereof was duly given to him. Cuipperly v. Crpperly (1918), 104 Mise. 434, 172 N. Y. Supp. 351. ARTICLE III. FORCIBLE ENTRY AND DETAINER. (Fiero, Spec. Pro., 8rd Ed., pp. 1679-1688.) Sections 2233 and 2235 of the Code of Civil Procedure, par- ticularly so far as they authorize the bringing of summary pro- ceedings in case of forcible entry and detainer, afford a separate 872 SUMMARY PROCEEDINGS TO and distinct remedy not dependent upon the relationship of land- lord and tenant, are plainly remedial and should be liberally con- strued. Markun v. Weckstein (1917), 100 Misc. 668, 166 N. Y. Supp. 736. A mere trespass, not accompanied by force, violence or intimida- tion by menaces, gestures or threats to obtain the possession of real property, is insufficient to make out a forcible entry; and as to forcible detainer, mere words are insufficient. People v. Bald- win (1911), 74 Misc. 384, 184 N. Y. Supp. 221. Where laborers under direction of the defendants broke down the door of one of the buildings, tore out the windows and broke in the side of another building in which the plaintiff lived, there was a forcible entry within the meaning of section 2233 of the Code of Civil Procedure. Nichols v. Hustis (1911), 146 App. Div. 475, 1381 N. Y. Supp. 265. A person forcibly kept out of possession may institute a sum- mary proceeding when the delay incident to an action in ejectment will render such relief inadequate. Koenig v. Kagle Waist Co. (1917), 176 App. Div. 726, 163 N. Y. Supp. 1019. ARTICLE IV. JURISDICTION. (Fiero, Spec. Pro., 3rd Ed., pp. 1688-1691.) Cope Civ. Pro., § 2234. Application; to whom made. Code Civ. Pro., § 2234. Application; to whom made. Application for removal of a person from real property, as prescribed in this title, may be made to the county judge, or special county judge of the county, or a justice of the peace of the city or town, or the mayor or recorder of the city, wherein the real property, or a portion thereof, is situated. Application may also be made, if the property, or a portion thereof, be situated in the city of New York, to a judge of the city court of the city of New York or the district court of the district within which the property, or a portion thereof, is situated; or if the judge of such court be for any reason disqualified, to the district court of an adjoining district; if in the city of Brooklyn, to a police justice of that city; if in the city of Albany, or the city of Troy, to a justice of the justices’ court of that city; if in the city of Yonkers, to the city judge of that city; if in the city of Syracuse, to a judge of the municipal court of said city; if in the cities of Rochester or Buffalo, to a judge of the city court of said cities. Where the property is situated in an incorporated village, the boundaries of which embrace portions of two or more towns, application may be made to a justice of the peace of either town, who keeps an office in the village. Amended by L. 1918, ch. 493. RECOVER THE POSSESSION OF LAND. 873 Under section 21 of the charter of the city of Buffalo the City Court has jurisdiction to entertain a summary proceeding under section 2282 of the Code of Civil Procedure to recover possession of, and remove squatters from premises situated in said city. jfatier of Pirew (1918), 105 Mise. 21, 172 N. Y. Supp. 307. ARTICLE Y., PETITION BY PERSON ENTITLED TO POSSESSION. (Fiero, Spec. Pro., 38rd Ed., pp. 1692-1701.) CopE Civ. Pro., § 2238 35. Who can maintain proceedings: contents of petition. $ 2237. Petition in case of bawdy-houses, etc. Ur Code Civ. Pro., § 2235. Who can maintain proceedings; contents of petition. The application may be made by the landlord or lessor of the demised premises; the purchaser upon the execution or foreclosure sale; the person forcibly put out or kept out; the person with whom, as owner, the agreement was made, or the owner of the property occupied under an agreement, to cultivate the property upon shares, or for a share of the crops; or the person lawfully entitled to the possession of the property intruded into or squatted upon, as the case requires; or by the legal representative, agent, or assignee of the landlord, purchaser, or other person, so entitled to apply; or by the person or corporation authorized to proceed under section twenty-two hundred and thirty-seven of this act. The applicant must present to the judge or justice, a written petition, verified in like manner as a verified complaint in an action brought in the supreme court; describing the premises of which the possession is claimed, and the interest therein of the petitioner, or the person whom he represents; stating the facts, which, according to the pro- visions of this title, authorize the application by the petitioner, and the removal of the person in possession; naming, or otherwise intelligibly designat- ing the person or persons against whom the special proceeding is instituted, and, if there are two or more such persons, and some are undertenants or assigns, specifying who are principals or tenants, and who are undertenants or assigns; and praying for a final order to remove him or them respectively. Amended by L. 19138, ch. 448. Code Civ. Pro., § 2237. Petition in case of bawdy-houses, etc. An owner or tenant, including a tenant of one or more rooms of an apart- ment house or tenement house, of any premises within two hundred feet from other demised real property used or occupied in whole or in part, as a bawdy- house, or house, or place of assignation for lewd persons, or for purposes of prostitution, or any domestic corporation organized for the suppression of vice, subject to or which submits to visitation by the state board of charities, and possesses a certificate from such board of such fact and of conformity with its regulations, may serve personally upon the owner or landlord of the premises, so used or occupied. or upon bis agent, a written notice, requiring the owner or landlord to make an application for the removal of the person so using or occupying the same. If the owner or landlord, or his agent, does not make such application, within five days thereafter; or, having made it, 874 SUMMARY PROCEEDINGS TO does not in good faith diligently prosecute it; the person or corporation giving the notice may make an application for such removal on a petition stating the jurisdictional facts, which application shall have the same effect, except as otherwise expressly prescribed in this title, as though the applicant were the owner or landlord of the premises, and shall have precedence over any similar application thereafter made by such owner or landlord or to one theretofore made by him and not prosecuted diligently and in good faith. Proof of the ill repute of the demised premises or of the inmates thereof or of those resorting thereto shall constitute presumptive evidence of the unlawful use of the demised premises, required to be stated in the petition for removal. Amended by L. 1913, ch. 448. Defects in the form of a petition in summary proceedings to remove a tenant are waived, where the parties agreed to proceed to try the proceeding upon its merits. Matter of Steele (1912), 154 App. Div. 860, 139 N. Y. Supp. 550. Where there is no proof that the person who verified the petition was the agent of the landlord summary proceedings cannot be maintained. Havemeyer’s Estate v. Stoddard (1914), 148 N. Y. Supp. 256. A mere allegation of service of notice, without alleging the manner of service or that the same was duly made, is insufficient to give the justice jurisdiction to grant the order. Wuitherbee v. Wykes (1913), 159 App. Div. 24, 143 N. Y. Supp. 1067. ARTICLE VI. PRECEPT, AND HOW SERVED. (Fiero, Spec. Pro., 8rd Ed., pp. 1701-1707.) Supp. 1. The precept. 2. Precept, how served. CopE Cry. Pro., § 2240. Idem; how served. Subd. 1. The Precept. (Fiero, Spee. Pro., 3rd Ed., pp. 1701-1703.) A lease is not cancelled by the issuance of the precept. Corn- well v. Sanford (1918), 222 N. Y. 248; Hinton v. Bogart (1915), 166 App. Div. 155, 151 N. Y. Supp. 796. But the moving by the tenant from the leased premises, after the issuance and service of the precept, cancels the lease and annuls the relation of land- lord and tenant as of the time of the removal. Cornwell v. San- ford (1918), 222 N. Y,. 248. RECOVER THE POSSESSION OF LAND, 875 The right to recover rent accruing prior to the issuance of the precept under which the warrant of dispossess was granted, is given by statute and this right is not abridged by the issuance of precepts which are dismissed, but continues to the time of the issuance of the precept upon which the final order is based. McGrory v. Lange (1918), 142 N. Y. Supp. 301. After the issuance of a precept in summary proceedings upon the default of a tenant, the landlord cannot recover rent payable in advance for the following month, but only the reasonable value of the use and occupation. Gwulick v. Thompson (1917), 165 N. Y. Supp. 788. Subd. 2. Precept, How Served. (Fiero, Spec. Pro., 38rd Ed., pp. 17038-1707.) Code Civ. Pro., § 2240. Idem; how served. The precept must be served as follows: 1. By delivering, to the person to whom it is directed, or, if it is directed to a corporation, to an officer of the corporation, upon whom a summons, issued out of the supreme court, in an action against the corporation, might be served, a copy of the precept, together with a copy of the petition, and at the same time showing him the original precept. 2. If the person, to whom the precept is directed, resides in the city or town in which the property is situated, but is absent from his dwelling- house, service may be made by delivering a copy thereof, together with a copy of the petition, at his dwelling-house, to a person of suitable age and discretion, who resides there: or, if no such person can, with reasonable diligence, be found there, upon whom to make service, then by delivering a copy of the precept and petition, at the property sought to be recovered, either to some person of suitable age and discretion residing there, or if no such person can be found there, to any person of suitable age and discretion employed there. 3. Where service cannot, with reasonable diligence, be made, as prescribed in either of the foregoing subdivisions of this section, by affixing a copy of the precept and petition upon a conspicious part of the property. If the precept is returnable on the day on which it is issued, it must be served at least two hours before the hour at which it is returnable; in every other case, it must be served at least two days before the day on which it is returnable. Amended by L. 1918, ch. 277. ARTICLE VII. ANSWER AND DEFENSES. (Fiero, Spec. Pro., 3rd Ed., pp. 1707-1718.) Cope Civ. Pro., § 2244. Answer. at ; : 876 SUMMARY PROCEEDINGS TO Code Civ. Pro., § 2244. Answer. At the time when the precept is returnable without waiting as prescribed in an action hefore a justice of the peace, or in a district court in the city of New York, the person to whom it is directed or his landlord, or any person in possession or claiming possession of the premises, or a part thereof, may answer, orally or in writing, denying generally the allegations, or specifically any material allegation of the petition, or setting forth a statement of any new matter constituting a legal or equitable defense, or counterclaim. Such defense or counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action. Tf such answer be oral the substance thereof shall be endorsed upon the petition. Amended by L. 1919, ch. 639. Where no personal demand for rent is made on the tenant he is entitled to a dismissal of a petition in summary proceedings. Alexander v. Rapkin (1914), 148 N. Y. Supp. 117. It is not enough that the tenant should allege his readiness and willingness to pay any rent that may be due; but if any rent whatever is due, the tenant must tender it to be relieved of his default. Wurz v. Watts (1911), 73 Mise. 262, 182 N. Y. Supp. 685. The tenants have the right to plead that the claim upon which the summary proceeding is brought had been settled and that an agreement had been entered into between the landlord and the tenants to discontinue the present proceeding. Cohen v. Hirsko- witz (1914), 84 Mise. 429, 146 N. Y. Supp. 195. Where a tenant by his answer admits that he leased the premises for one month a so-called affirmative defense that he leased the premises for one year is invalid, but his motion made at the open- ing for leave to amend the answer so as to deny said allegation admitted. Bawo & Potter, Limited v. Rothman (1916), 97 Misc. 666, 162 N. Y. Supp. 347. Counterclaim based upon a breach of contract by a landlord may be interposed by the tenant. Franklin Building Co. v. Finn (1914), 165 App. Div. 469, 150 N. Y. Supp. 995. A tenant in summary proceedings to dispossess him mav counterclaim his damages because of the false and fraudulent representations of the landlord in reliance upon which the tenant claimed to have entered into the lease. Simpson v. Twenty-Highth Street Com- pany (1915), 92 Mise. 398, 156 N. Y. Supp. 89. A tenant is entitled to setoff against a claim for rent due to a private banker whose bank has been taken charge of by the superintendent of RECOVER THE POSSESSION OF LAND. 877 banks, a deposit in the landlord’s bank. Mandel v. Koerner (1914), 149 N. Y. Supp. 455. A tenant cannot interpose a counterclaim running in favor solely of his assignee. Matter of Barney v. DuVivier (1914), s6 Mise. 29, 147 N. Y. Supp. 913. The tenant cannot plead counterclaims based upon negligence. Franklin Building Co. v. Finn (1914), 165 App. Div. 469, 150 N. Y. Supp. 995. Neither can he counterclaim for damages caused by acts of an independent contractor over whom the landlord had no control. Franklin Bldg. Co. v. Finn (1914), 86 Mise. 20, 148 N. Y. Supp. 90, affd., 165 App. Div. 469, 150 N. Y. Supp. 995. No offset will be allowed where the rent is payable in advance and the issuance of the warrant is made unnecessary by reason of the vacation of premises after the service of the precept for dispossession, although immediately after the tenant vacates the landlord resumes possession by exercising dominion over the premises. Rooney v. Flynn (1917), 98 Mise. 610, 163 N. Y. Supp. 200. Where the rent was payable semi-monthly, and the amount claimed by the tenant for his services as janitor was greater than the semi-monthly rent due when the petition was filed, it was held, that the tenant was entitled to have this defense presented to the jurv. Alexander v. Rapkin (1914), 148 N. Y. Supp. 117. The provision of section 2244 of the Code of Civil Procedure authorizing a counterclaim bv the tenant applies to the Municipal Court of the city of New York. Mandel v. Koerner (1914), 149 N. Y. Supp. 455. Where in a summary proceeding instituted in the Municipal Court of the city of New York for nonpayment of rent by the grantee of the leased premises, the tenant pleads as a separate defense and counterclaim a cause of action in excess of the juris- diction of the court, in respect to which no affirmative judgment can be granted, and judgment is rendered in favor of the tenant, he, in a proceeding to dispossess him for nonpayment of rent sub- sequently accrued, may avail himself of the surplus of the same counterclaim above the petitioner’s claim in the first proceeding. and interpose the same as a defense or counterclaim in the second. Forty-sixth St. R. Corp. v. Gutschneider, Inc. (1918), 108 Mise. 491. 878 SUMMARY PROCEEDINGS TO ARTICLE VIII. TRIAL, EVIDENCE AND MATTERS OF PRACTICE. (Fiero, Spec. Pro., 8rd Ed., pp. 1718-1727.) Supp. 2. Evidence. 3. Matters of practice. Subd, 2. Evidence. (Fiero, Spec. Pro., 8rd Ed., pp. 1722-1726.) The court obtains jurisdiction by means of the sworn petition of the plaintiff and the plaintiff cannot sustain a final order unless he has made proof according to his allegations. Morgan v. Morgan (1914), 150 N. Y. Supp. 554. In summary proceedings to remove squatters from lands, it is error to refuse to allow the petitioner claiming a title derived from the State to introduce in evidence a document claimed to be letters patent in the absence of any claim or proof by the respondent of a defect in the title. White v. Lancraft (1912), 148 App. Div. 692, 182 N. Y. Supp. 1016. The exclusion of evidence tending to establish a counterclaim for damages caused by the false representations of the landlord is error for which a final order awarded in favor of the landlord will be reversed and a new trial ordered. Simpson v. Twenty- eighth Street Company (1915), 92 Mise. 398, 156 N. Y. Supp. 89. Where the only question submitted to the jury is the affirmative defense of payment of rent it is error to instruct the jury that the burden of proof is upon the landlord. Stevane v. Goldberg (1916), 157 N. Y. Supp. 781. Subd. 3. Matters of Practice. (Fiero, Spec. Pro., 3rd Ed., pp. 1726-1727.) The New York City Municipal Court has power to open a default in a summary proceeding. Moritz v. Gouze (1916), 159 N. Y. Supp. 821. Where, on the return of the precept the attorney for the defend- ant withdrew upon the court’s imposing, as a condition of giving an extension of time to answer, an immediate trial, and another RECOVER THE POSSESSION OF LAND. 879 attorney appeared the next morning and presented a verified answer, it was error for the judge to refuse to receive it and grant judgment as on default in pleading. Haviland v. Bommersheim (1913), 81 Mise. 205, 142 N. Y. Supp. 542. ARTICLE IX. FINAL ORDER AND ITS EFFECT. (Fiero, Spec. Pro., 8rd Ed., pp. 1728-1734.) Susp. 1. The final order. 2. Effect of final order. Subd. 1. The Final Order. (Fiero, Spec. Pro., 8rd Ed., pp. 1728-1730.) It is essential to the jurisdiction of the court to entertain and make a final order that the tenant should be in possession. Warrin v. Haverty (1912), 149 App. Div. 564, 183 N. Y. Supp. 959. Where the verdict establishes that some rent is due, the landlord is entitled to a final order awarding to him the possession of the premises. Loth v. Harris (1912), 76 Mise. 505, 135 N. Y. Supp. 5538. In a summary proceeding instituted in the Municipal Court of the City of New York a final order awarding possession of the premises to the landlord must be made by the justice and signed by the clerk of the court and the warrant is issued, when so signed and delivered for execution. Upon making the final order the justice, as to the proceeding, becomes functus officio except on motion to set aside the verdict and to grant or deny a new trial, and he has no authority by an indorsement at the foot of said order to stay the issuance of the warrant to remove the tenant, and any such attempted stay is a nullity. People ex rel. Kilgallon v. Nuhn (1915), 92 Mise. 312, 156 N. Y. Supp. 559. Subd. 2. Effect of Final Order. (Fiero, Spec. Pro., 8rd Ed., pp. 1730-1734.) A lease is not cancelled by the making of the final order. Corn- well v. Sanford (1918), 222 N. Y. 248; Hinton v. Bogart (1915), 166 App. Div. 155, 151 N. Y. Supp. 796. But the relation of landlord and tenant ceases upon the tenant’s vacating the premises 880 SUMMARY PROCEEDINGS TO under a final order requiring him to deliver possession to the landlord. Fifth Ave. Inv. & Im. Co. v. Bounsignore R. Co. (1912), 75 Mise. 651, 133 N. Y. Supp. 964, affd., 135 N. Y, Supp. 674. A final order in favor of the landlord is res adjudicata that the tenants continued in possession of the premises and defaulted in the payment of rent reserved. Seventy-eighth St. & Broad- way Co. v. Arches (1912), 76 Misc. 438, 135 N. Y. Supp. 4. In an action for rent a final order theretofore granted in summary proceedings is conclusive upon the existence of the relation of landlord and tenant. Hquitable Trust Co. v. King (1913), 83 Mise. 450, 145 N. Y. Supp. 94. While the default in a summary proceeding is conclusive on a subsequent proceeding that the yelation of landlord and tenant existed, and that there was a default in the payment of rent it is not conclusive as to a counter- claim in a subsequent proceeding for damages caused by the land- lord’s false representations. Steele v. Haltzer (1913), 144 N. Y. Supp. 643. The only effect of a judgment in summary proceedings against a tenant is the determination as to whether he or his landlord is entitled to the possession of the premises. Sea Gate Hotel Co. v. Nahmmacher (1919), 106 Mise. 315, 175 N. Y. Supp. 721. While a final order does not adjudge the amount of the rent due and unpaid it is a determination that the tenant holds over after nonpayment of rent past due. People ex rel. Kuilgallon v. Nuhn (1915), 92 Mise. 312, 156 N. Y. Supp. 559. ARTICLE X. THE WARRANT AND ITS EFFECT UPON THE LEASE. (Fiero, Spec. Pro., 8rd Ed., pp. 1734-1737.) Section 2253 of the Code of Civil Procedure and section 220 of the Real Property Law together afford to a landlord a complete remedy by action for use and occupation against a tenant wrong- fully holding over after the expiration of his term which neither gives separately. Under section 220 of the Real Property Law a landlord could only recover where the relationship of landlord and tenant existed either expressly or impliedly, while under the Code a landlord could recover for use and occupation to the time when the warrant is issued, although a new relationship of landlord and RECOVER THE POSSESSION OF LAND. 881 tenant had not been created, the former relationship being con- tinued for the purpose of such an action. Matter of Sweeney (1916), 94 Mise. 617, 159 N. Y. Supp. 984. Rent due under the terms of a lease, at the time the precept was issued in a summary proceeding for the removal of the tenant, may be recovered. Geizler v. Hirsch (1915), 156 N. Y. Supp. 670. The liability of the tenant to pay rent accruing in the future is terminated by an eviction by summary proceedings. The tenant thereafter is not liable to damage for failure to perform the covenants contained in the lease unless there is an express provi- sion permitting the landlord to re-enter, lease the property and hold the tenant liable for the difference between the amount received and the amount agreed to be paid. Mann v. Munch Brewery (1916), 173 App. Div. 746, 160 N. Y. Supp. 314. A clause in a lease permitting the landlord merely to “ re-enter ” for covenant broken refers solely to reentry by the common-law action of ejectment, and where the lease further provides that in the event of such re-entry the landlord may relet, as agent of the tenant, receive the rents and hold the tenant liable for any deficiency the landlord’s privilege and the consequent obligation of the tenant to respond in damages for the difference in rent do not survive a dispossess by summary proceedings. Fleisher v. Friol (1916), 97 Misc. 348, 161 N. Y. Supp. 940, affd., 177 App. Div. 921, 164 N. Y. Supp. 1092. A covenant to pay any deficiency, lessor having the right to relet premises for account of tenant, survives dispossession by sum- mary proceedings. (rulick v. Thompson (1917), 165 N. Y. Supp. 788. Compare Fifth Ave. Invest. & Im. Co. v. Bounsignore R. Co. (1912), 75 Mise. 651, 183 N. Y. Supp. 964, affd., 135 N. Y. Supp. 674. After summary proceedings to dispossess the tenant for breach of covenant the landlord may not recover moneys expended for repairs which the tenant was obligated to make under the lease, in the absence of proof that they were made necessary by any neglect of duty on the part of the tenant during the tenancy. Crausman v. Graham Construction Co. (1916), 95 Mise. 608, 159 N. Y. Supp. 709. Usually the issuing of a warrant for the removal of a tenant from demised premises cancels the agreement for the use of the 56 882 SUMMARY PROCEEDINGS TO premises and annuls the relation of landlord and tenant. (Code Civ. Pro., § 2253). The parties may, however, as they did in this case, agree to the contrary and render the lessees liable to the end of the term although out of possession, and an assignee may also contract that he will remain liable after possession has terminated and for the period of the lease. Mann v. Munch Brewery (1919), 225 N. Y. 190. Where there is no surviving covenant on the part of a tenant to pay rent or to compensate the landlord for loss of rent after a warrant to dispossess has been served, a provision of the lease for liquidated damages in case the tenant be removed from the premises and they become vacant may properly be regarded as such, and is not necessarily to be treated as a penalty. Ridley v. Sudbrink (1918), 105 Mise. 52, 172 N. Y. Supp. 517. Where a tenant deposits money with his landlord as security for the payment of rent and, on the bankruptcy of the tenant, the landlord dispossessed him by summary proceedings, there was an election by the landlord to end the relation between them, and hence a waiver of all claims to the deposits except as to the amount applicable for payment of rent then due. Folger v. Raczek (1915), 167 App. Div. 167, 152 N. Y. Supp. 1041. The opposite conclusion was reached where it was provided that the deposit was for liquidated damages in addition to such other dam- ages as the landlord might be able to prove. Halpern v. Manhattan Ave. Theatre Corporation (1916), 173 App. Div. 610, 160 N. Y. Supp. 616, affd., 220 N. Y. 655. See also Blumberg v. Corday (1915), 160 N. Y. Supp. 613, affg., 155 N. Y. Supp. 1095. Where the tenant deposits with the landlord a sum to be held as security for the payment of rent and for reimbursement for any expenses or damage incurred because of the failure of the tenant to perform the conditions of the lease, the landlord is not bound to return the amount of the tenant’s deposit at the time of the issuing of the warrant in summary proceedings and the landlord may retain the deposit as security for any loss or difference in rent received upon a reletting after the issuance of the warrant. And this despite the fact that the relation of landlord and tenant is terminated upon the issuance of the warrant. Horowitz v. Eiidelhett (1915), 151 N. Y. Supp 283. See also Von Erlenbell v. Sound Realty Co. (1916), 159 N. Y. Supp. 824. RECOVER THE POSSESSION OF LAND. 883 ARTICLE XI. STAY OF PROCEEDINGS. (Fiero, Spec. Pro., 3rd Ed., pp. 1738-1744.) Susp. 1. Stay of warrant. 2. Injunction. Subd. 1. Stay of Warrant. (Fiero, Spec. Pro., 3rd Ed., pp. 1738-1739.) A tenant in summary proceedings can only stay the execution of a final order awarding possession of the premises to the land- lord, upon payment of the rent due and the costs of the proceeding. Fifth Ave. Invest & Im. Co. v. Bounsignore R. Co. (1912), 75 Mise. 651, 1383 N. Y. Supp. 964, affd., 135 N. Y. Supp. 674. Where a tenant tendered to the landlord and delivered to the clerk of the court where summary proceedings were pending against him the exact sum which he admitted to be due for rent, but which was less than the sum actually due, as subsequently determined, which sum the landlord refused to accept, it was held that the payment was not made to stay the issuing of a warrant pursuant to section 2254 of the Code of Civil Procedure. Browning, King & Co. v. Chamberlain (1914), 210 N. Y. 270, revg., 150 App. Div. 391, 184 N. Y. Supp. 1104. By appealing from the final order the tenant does not lose his right to pay the rent due, and interest and penalty and thereby secure a stay of the warrant. People ex rel. Kilgallon v. Nuhn (1915), 92 Mise. 312, 156 N. Y. Supp. 559. Subd. 2. Injunction. (Fiero, Spec. Pro., 8rd Ed., pp. 1739-1744.) An injunction will not be granted in order to enable the tenants to review in the upper court a finding of the lower court which the tenants claim to be erroneous. Fraud, surprise or undue advantage in the actual conduct of the proceeding is necessary to the granting of an injunction. Buffalo Wholesale Hardware Co. v. Schutrum (1917), 166 N. Y. Supp. 726. Where a city court act provides a comprehensive plan for stays of execution of orders and judgments appealed from of all kinds, 884 SUMMARY PROCEEDINGS TO a motion under section 2265 of the Code of Civil Procedure, for an injunction to stay the execution of the warrant pending an appeal from a final order of the city court in a summary proceeding will be denied. Schutrum v. Buffalo Wholesale Hardware Co. (1917), 101 Mise. 115, 166 N. Y. Supp. 725. ARTICLE XII. REDEMPTION. (Fiero, Spec. Pro., 3rd Ed., pp. 1744-1747.) Where a tenant has been evicted by summary proceedings in a case where the unexpired term exceeds five years, his tender to the landlord of the rent in arrears with costs and interest, does not of itself reinstate the tenant or impose upon the landlord the duty of actually putting him into possession especially where the land- lord has relet the premises. Terwilliger v. Browning, King & Co. (1912), 152 App. Div. 552, 137 N. Y. Supp. 572. Where the tenant, having the right to redeem premises which have been relet by the landlord, obtains an order of redemption pursuant to section 2259 of the Code of Civil Procedure from the justice who issued the warrant of dispossession and has not appealed from an adjudication fixing the amount payable to the landlord, and has accepted an off-set for rent paid by the new tenant, he cannot thereafter maintain an action to recover dam- ages alleged to be due to the fact that the landlord caused the new tenant to alter the premises so that they can no longer be used for the purpose for which the lessee rented them. Terwil- lager v. Browning, King & Co. (1912), 152 App. Div. 552, 187 N. Y. Supp. 572. It seems that where a tenant has been evicted and his unexpired term exceeds five years, the landlord may nevertheless relet the premises during the one year period within which the tenant must commence redemption proceedings as permitted by the Code, and the new lease only expires on the first day of the succeeding May. Terwilliger v. Browning, King & Co. (1915), 165 App. Div. 799, 151 N. Y. Supp. 335. Tt seems, also, that an evicted tenant who has obtained an order of redemption as permitted by the Code of Civil Procedure should make demand for possession upon the new tenant, not upon the landlord. Terwilliger v. RECOVER THE POSSESSION OF LAND. 885 Browning, King & Co. (1915), 165 App. Div. 799, 151 N. Y. Supp. 335. ARTICLE XIII. APPEAL AND RESTITUTION. (Fiero, Spec. Pro., 3rd Ed., pp. 1748-1753.) The right to award restitution is discretionary. Witherbee v. Wykes (1918), 159 App. Div. 24, 143 N. Y. Supp. 1067. A tenant has the right to recover such damages as he has sustained by an unauthorized order of dispossession. Witherbee, Sherman & Co. v. Wykes (1913), 159 App. Div. 24, 143 N. Y. Supp. 1067. SUPPLEMENTARY PROCEEDINGS TO AN EXECU- TION AGAINST PROPERTY. (Fiero, Spec. Pro., 8rd Ed., pp. 1754-1880.) Art. I. Remedies under this title and when granted. II. Jurisdiction. III, Order to examine debtor after return of execution. IV. Order to examine debtor before return of execution. V. Order to examine person having property of judgment debtor. VI. Injunction. VII. Service of order, injunction or warrant. VIII. When reference ordered and examination of debtor. X. Payment by debtor to sheriff and proceedings thereon. XI. Dismissal or discontinuance of proceedings. XII. Costs. XIII. Miscellaneous matters of practice. XIV. Contempts. XV. How orders vacated, modified, or reviewed. XVI. Receiver, when and how appointed. XVII. Title of the receiver to property of the debtor. XVIII. Rights, powers and duties of receiver. XIX. Receiver subject to control of court. ARTICLE I. REMEDIES UNDER THIS TITLE AND WHEN GRANTED. (Fiero, Spec. Pro., 3rd Ed., pp. 1757-1763.) Susp. 1. Nature of remedies. 2. When article does not apply. Subd. 1. Nature of Remedies. (Fiero, Spec. Pro., 8rd Ed., pp. 1757-1760.) In a proceeding supplementary to execution, the court is with- out jurisdiction to make an order declaring a person not a party to the proceeding and not sworn as a witness therein, to be a receiver for the benefit of creditors of the judgment debtor under the provisions of section +4 of the Personal Property Law, as amended, which makes the transfer of goods in bulk void as against the creditors of the transferrer under certain cireum- stances. Kaphan v. Rogers Bros. Grocery Co., Inc. (1915), 169 App. Div. 63, 154 N. Y. Supp. 753. A court of equity will not entertain an action superseding the 886 SUPPLEMENTARY PROCEEDINGS TO AN EXECUTION, ETC, 887 findings of a sheriff’s jury, as to ownership of property since, if the sheriff was guilty of fraud, an action at law may be main- tained against him and if the claimants were guilty of fraud, the plaintiff has an ample remedy in proceedings supplementary to execution. Gilmowr Door Co. v. Shea (1912), 150 App. Div. 239, 134 N.Y. Supp. 919. Subd. 2. When Article Does Not Apply. (Fiero, Spec. Pro, 8rd Ed... pp. 1760-17638.) A proceeding supplementary to execution cannot be sustained upon a foreign judgment or judgment in rem. It must be a judgment by which the person of the judgment debtor is bound. Matter of Maltbie v. Lobsitz Malls Co. (1918), 223 N. Y. 227. Where the primary object of supplementary proceedings is not to discover property with which to satisfy a judgment upon which the proceedings are based but to obtain evidence for use upon the trial of an action, the defendants may move in such action to. restrain further examination. Jones v. Ramsdell (1916), 174 App. Div. 13, 159 N. Y. Supp. 209. Where the only property of a judgment debtor which is claimed to be possessed by a third party is a dower interest in real estate claimed to have been fraudulently assigned, such third party can- not be examined in supplementary proceedings. Steinmann v. Hosier (1912), 189 N. Y. Supp. 863, 3 Civ. Pro. (N. 8.), 22. Where a judgment debtor is imprisoned under an execution of the person, supplementary proceedings are suspended while the imprisonment continues. Hverall v. Stevens (1913), 158 App. Div. 723, 143 N. Y. Supp. 874. ARTICLE II. JURISDICTION. (Fiero, Spee. Pro., 3rd Ed., pp. 1763-1769.) Proceedings supplementary to execution are proceedings before a judge and not before the court, and while a proceeding com- menced before one judge may be continued before another, yet it is essential to preserve the continuity by adjournment from time to time. Matter of Wilson v. Bracken (1912), 150 App. Div. 577, 185 N. Y. Supp. 485. 888 SUPPLEMENTARY PROCEEDINGS TO AN The County Court of Bronx county, upon the institution therein of proceedings supplementary to an execution issued upon a judgment of the City Court of the city of New York, has juris- diction to order the judgment debtor to turn over his property to the receiver appointed by the said City Court. Clark v. Shaw (1915), 91 Misc. 245, 154 N. Y. Supp. 1101. Where a judgment recovered in the borough of Brooklyn in the Municipal Court of the City of New York is docketed with the county clerk of Kings county it is deemed a judgment of the Supreme Court and a justice of the Supreme Court has jurisdic- tion to make an order for the examination of the judgment debtor. Matier of Streep (1918), 181 App. Div. 869, 168 N. Y. Supp. 1026. ARTICLE III. ORDER TO EXAMINE DEBTOR AFTER RETURN OF EXECUTION. (Fiero, Spec. Pro., 3rd Ed., pp. 1769-1786.) Supp. 1. Who entitled to the remedy and against whom. 3. The affidavit. 4. The order and proceedings thereon. ‘Subd. 1. Who Entitled to the Remedy and Against Whom. (Fiero, Spec. Pro., 3rd Ed., pp. 1769-1775.) Imprisonment on body execution of one of two copartners bars ‘supplementary proceedings against the other. LHverall v. Stevens (1913), 158 App. Div. 723, 148 N. Y. Supp. 874. A wife who has obtained a final decree of separation from her husband, awarding her alimony, and has failed to collect the same by contempt proceedings, may docket a judgment for the amount due. After an execution thereon has been returned unsatisfied, she is entitled to an order for the examination of her husband in proceedings supplementary to execution. Matter of Donovan (1913), 159 App. Div. 228, 144 N. Y. Supp. 280. A theatre in the city of New York at which a Judgment debtor was playing an engagement as an actor at the time of the institu- tion of supplementary proceedings is not “a place for the regular transaction of business in person” in the county of New York. De Angelli v. Dixey (1917), 101 Mise. 606, 167 N. Y. Supp. 663. Supplementary proceedings may be maintained for the examina- EXECUTION AGAINST PROPERTY. 889 tion of an administratrix with the will annexed to enforce a surrogate’s decree. Hoye v. Babcock (1912), 2 Bradb. 118. Supplementary proceedings may be maintained against domestic corporations by judgment creditors. Matter of Boucker Co. v. Callahan Co. (1916), 218 N. Y. 321; Matter of Maltbie v. Lobsitz Mills Co. (1918), 223 N. Y. 227. Such proceedings may be enforced against a corporation even though it has been dissolved in voluntary proceedings. German Hachange Bank v. Scheidg (1913), 3 Bradb. 556. The fact that there has been an examination of the judgment debtor by one judgment creditor does not affect the right of other judgment creditors to have at least one examination of the debtor, or of a third party, as a matter of right. Matter of Walker (1913), 157 App. Div. 609, 142 N. Y. Supp. 972. A subsequent examination of a judgment debtor is discretionary, and in an application for the same facts should be set forth as a basis for the exercise of such discretion. It should be made to appear that the judgment debtor has acquired property since his last examination, that it remains in his possession or under his control, and is applicable to the payment of the judgment, and, if several examinations within a short time of one another have recently taken place, then facts should be shown from which it may be inferred that the judgment creditor will obtain useful informatior , and that the examination is not being used as a club to enforce settlement of claims which the debtor is without property to pay. Tivingston v. Livingston (1917), 164 N. Y. Supp. 419. Subd. 3. The Affidavit. (Fiero, Spec. Pro., 3rd Ed., pp. 1779-1783.) Unless the affidavit alleges that an execution has issued out of the proper court there is no jurisdiction to grant an order for the examination of the judgment debtor. Roth v. Light (1912), 135 N. Y. Supp. 601. An affidavit for an order of examination made by the judgment ereditor’s attorney and based entirely upon information and belief without giving the sources of the information nor the grounds for the belief is insufficient. National Printing & Engraving Co. v. Armstrong (1914), 150 N. Y. Supp. 433. An affidavit which states that an execution was issued to the 890 SUPPLEMENTARY PROCEEDINGS TO AN sheriff of the county where the judgment debtor then maintained an office at the time of the commencement of the proceedings and still maintains an oftice for the transaction of business, is sufficient to sustain an order granted thereon. Bradley v. Certigue Mining & Dredging Co. (1916), 93 Mise. 519, 157 N. Y. Supp. 275. Where the assignee of a judgment institutes proceedings sup- plementary to execution thereon his affidavit to obtain an order for the examination of the judgment debtor must state who owns the judgment, whether it has been transferred, and how the affiant came to own it, to the end that it may appear that the proceedings are in fact brought by the real party in interest. Kemp v. Garten- Lerg (1916), 93 Mise. 318, 156 N. Y. Supp. 883. Where the affidavits for a second examination of a judgment debtor in supplementary proceedings do not purport to show any good reasons for the examination, the order should be reversed and the application denied. Shane Bros. & Wilson Co. v. Hen- shaw (1916), 174 App. Div. 606, 161 N. Y. Supp. 115. Ina second examination the court may permit the service of an addi- tional affidavit, showing that since the previous examination the debtor has acquired property not exempt from execution, as the omission of this proof from the application for the second examina- tion was not a jurisdictional defect. Funk & Wagnalls Co. v. Nechamkin (1918), 3 Bradb. 431. The objection to the swficiency of papers in supplementary proceedings is waived by the appearance of the defendant and consenting to an adjournment of the examination. German Exchange Bank v. Scheidig (1913), 3 Bradb. 556. Subd. 4. The Order and Proceedings Thereon. (Fiero, Spec. Pro., 3rd Ed., pp. 1783-1786.) The order is one requiring the debtor to attend and be examined cencerning his property, that the same may be applied in satis- faction of the judgment. Matter of Maltbie v. Lobsitz Mills Co. (1918), 223 N. Y. 297. ARTICLE IV. ORDER TO EXAMINE DEBTOR BEFORE RETURN OF EXECUTION. (Fiero, Spec. Pro., 3rd Ed., pp. 1786-1788.) An order for the examination of a judgment debtor may be granted at any time after the issuing of execution and before the EXECUTION AGAINST PROPERTY. 891 return thereof; the ten-year limitation provided in section 2435 of the Code of Civil Procedure does not apply. Stevens Co. v. Maus (1913), 155 App. Div. 249, 189 N. Y. Supp. 1059; Press Pub. Co. v. McGill (1912), 136 N. Y. Supp. 177. As an examination of a judgment debtor before the return of execution is not a substitute for a creditor’s bill, the creditor need not first exhaust all his remedies at law as required before an examination after return of execution. Stevens Vo. v. Maus (19138), 155 App. Div. 249, 189 N. Y. Supp. 1059; Press Pub. Co, v. McGill (1912), 186 N. Y. Supp. 177. An affidavit upon an application for an order for the examina- tion of a defendant in a proceeding supplemental to but before the return of execution, which simply contains an allegation that the debtor has property which it unjustly refused to apply to the satisfaction of the judgment based on information and _ belief, without disclosing the sources thereof, is fatally defective. Matter of Smith v. Haverty’s Stables (1913), 157 App. Div. 777, 142 N. Y. Supp. 764. ARTICLE V. ORDER TO EXAMINE PERSON HAVING PROPERTY OF JUDGMENT DEBTOR. (Fiero, Spec. Pro., 3rd Ed., pp. 1788-1796.) An order in proceedings supplementary to execution may be granted for the examination of the executors of the will of the mother of the judgment debtor. King v. Burnett (1918), 102 Mise. 161, 168 N. Y. Supp. 405. A third party who is under subpeena as a witness in supplemen- tary proceedings instituted against a debtor should not be served with a third party order while the subpcena is in force. Stein- mann v. Hosier (1912), 139 N. Y. Supp. 863. Although a receiver of the property of a judgment debtor has been appointed and has qualified the court may still grant an order for the examination of a third party as to property in his hands belonging to the judgment debtor. Matter of Denison v. Jackson Pros. Realty Co. (1913), 158 App. Div. 475, 148 N. Y. Supp. 586. Compare Matter of Walker (1913), 80 Mise. 389, 141 N. Y. Supp. 265. A judgment creditor is only entitled, as a matter of right, to 892 SUPPLEMENTARY PROCEEDINGS TO AN one examination in supplementary proceedings of a third party alleged to hold property of the judgment debtor. Hence, on an application for a second order to examine the third party, he should show facts entitling him to a second order which should be limited to the period subsequent to the commencement of the first proceeding. Matter of Walker (1913), 157 App. Div. 609, 142 N. Y. Supp. 972. ARTICLE VI. INJUNCTION. (Fiero, Spec. Pro., 8rd Ed., pp. 1796-1799.) A third party order in supplementary proceedings may be issued against an employer directing an examination concerning its alleged indebtedness to the judgment debtor, and, pending such examination, restraining the disposition of any property belonging to the judgment debtor. Hayward v. Hayward (1917), 178 App. Div. 92, 164 N. Y. Supp. 877. Where the ownership of the property of a judgment debtor in the hands of a third party is in dispute a restraining order should not be granted. Rathers v. Kaplan (1911), 188 N. Y. Supp. 1002, 3 Civ. Pro. (N.S.), 21. ARTICLE VII. SERVICE OF ORDER, INJUNCTION, OR WARRANT. (Fiero, Spec. Pro., 8rd Ed., pp. 1799-1801.) Where no service was made of an order for the examination of a judgment debtor, and its return was passed, it has no validity and may be disregarded except that the fact that it had been granted should be stated in an application for a new order. Matter of Dorfman v. Jacobs (1917), 100 Mise. 592, 165 N. Y. Supp. 403. Where an order for examination of a judgment debtor which was returnable at 10 A. M. of a certain day and was not served until 9:40 A. M. of the same day it was held that the debtor should not be adjudged guilty of contempt for failure to obey it. Levey v. Rosett (1917), 166 N. Y. Supp. 1072. EXECUTION AGAINST PROPERTY. 893 ARTICLE VIII. WHEN REFERENCE ORDERED AND EXAMINATION OF DEBTOR. (Fiero, Spec. Pro., 3rd Ed., pp. 1801-1809.) Supp. 1. Referee may be appointed. 2. Examination before judge or referee. Subd. 1. Referee May Be Appointed. (Fiero, Spec. Pro., 3rd Ed., pp. 1801-1802.) An attorney at law holding an unsatisfied judgment against a debtor should not be appointed a referee to take evidence in sup- plementary proceedings brought against the debtor by another creditor. latter of Higley v. Novark (1911), 145 App. Div. 7, 129 N. Y. Supp. 759. The judge has supervisory power over supplementary proceed- ings pending before a referee and on the application of the debtor should compel their termination within a reasonable time after a fair examination. Feinberg v. Kutcosky (1911), 147 App. Div. 393, 182 N. Y. Supp. 9. Subd. 2. Examination Before Judge or Referee. (Fiero, Spec. Pro., 8rd Ed., pp. 1802-1807.) The object of supplementary proceedings is to ferret out fraudu- lent conveyances and cencealments of propertv. The examination is therefore allowed to take a wide and searching range, both as to the parties to the proceedings, and to the witnesses. People v. Hanbury (1914), 162 App. Div. 337, 147 N. Y. Supp. $51. Proceedings supplementary to execution are proceedings before a judge and not before the court, and while a proceeding com- menced before one judge may be continued before another, vet it is essential to preserve the continuity by adjournment from time to time. VWatter of Wilson v. Bracken (1912), 150 App. Div. 577,185 N. Y. Supp. 435. A witness in supplementary proceedings may be compelled to produce books and papers and the judgment creditor is entitled in a proper case to have such documents put in evidence and sub- jected to his inspection. Steinman v. Conlon (1913). 79 Misc. 527, 141 N. Y. Supp. 79. 894 SUPPLEMENTARY PROCEEDINGS TO AN ARTICLE NX. PAYMENT BY DEBTOR TO SHERIFF, AND PROCEEDINGS THEREON. (Fiero, Spee. Pro., 3rd Ed., pp. 1811-1818.) The judgment creditor may make the application for the order requiring the debtor to turn over property to a receiver. Clark v. Shaw (1915), 91 Mise. 245, 154 N. Y. Supp. 1101. An order requiring the delivery of property made by the court, instead of by the judge by whom the warrant in supplementary proceedings was granted, is invalid. Chestnut v. Greenberg (1916), 162 N. Y. Supp. 137. An order to pay money into the hands of the sheriff or receiver can be made only when the judgment debtor’s right to the posses- sion of the money or property is not substantially disputed. If there is a real controversy in this respect it cannot be settled in supplementary proceedings. Bernstein v. Traverso (1913), 82 Mise. 411, 143 N. Y. Supp. 1091; Zumboldt Exploration Co. v. Fritsch (1912), 150 App. Div. 90, 134 N. Y. Supp. 747: Shea Lynskey (1912), 183 N. Y. Supp. 477. However, the court may appoint a receiver, leaving the receiver to take such steps as may be necessary to obtain the property. farding v. Conlon (1912), 138 N. Y. Supp. 1014. The proper procedure is to appoint a receiver, who can test the question by action, and not to determine the matter upon motion. Friedman v. Stein (1911), 138 N. Y. Supp. 928. Where a dispute as to a judgment debtor’s right to possession arose on cenceded facts, and is confined to questions of law which have been well settled, a third party, by denying the existence of the legal rules, cannot create a substantial dispute so as to deprive a judge of power to make an order for the delivery of property to the sheriff or receiver. Matter of Flynn (1913), 157 App. Div. 241, 141 N. Y. Supp. 807. Where it clearly appears that the appellants held property which under a restraining order they were not allowed to part with possession of, under the terms of an overdue chattel mortgage from the judgment debtor, it can- not be correctly said that the title to the property in question was not the subject of a substantial dispute. Maguire v. O. U. Bean & Co. (1913), 143 N. Y. Supp. 753. Where the title of the debtor is disputed an order denying a motion to compel the third party to deliver the property to a receiver is not an adjudication EXECUTION AGAINST PROPERTY. 895 as to the ownership. Humboldt Exploration Co. v. Fritsch (1912), 150 App. Div. 90, 134 N. Y. Supp. 747. So, too, the refusal of the court to order the receiver to summarily turn over the property to one claiming title is not a final adjudication as to the ownership, nor does it prevent the claimant from maintain- ing an action of replevin against the receiver. Humboldt Bxplora- tion Co. v. Fritsch (1912), 150 App. Div. 90, 1834 N. Y. Supp. TAT. Although an original order directing payment to the sheriff by a third person, was made without notice to the third person, where the latter moved to vacate the order and his motion was denied, he has been afforded a hearing on the merits. Matter of Nichol v. Wilson (1916), 175 App. Div. 667, 161 N. Y. Supp. 870. The payment of money by a third person in violation of a restraining order is without validitv as against the judgment creditor, and furnishes no answer to a subsequent application to the court for an order directing the third person to pay the moneys to the sheriff. A/atter of Nichol v. Wilson (1916), 175 App. Div. 667, 161 N. Y. Supp. 870. .\ motion to vacate or modify an order requiring third persons to turn over to a receiver in proceedings supplementary to execu- tion, certain personal property claimed to belong to the judgment debtor, can properly be made only to the judge who granted the. order, or to the court out of which the execution upon the judg- ment was issued. Matter of Flynn (1913), 80 Mise. 79, 140 N. Y. Supp. 799. Recovery by receiver of judgment debtor of pledged securities, see Matter of Flynn (1913), 157 App. Div. 241, 141 N. Y. Supp. 807. A court has no authority to issue a mandatory order requiring a savings bank to pay to a sheriff the sum of a deposit of a judg- ment debtor. Kantor Bros v. Wile (1916), 93 Mise. 438, 158 N. Y. Supp. 115. An order providing that the judgment debtor “ execute, acknowl- edge and deliver to such receiver a proper and valid assignment and conveyance of all his property and assets” by the Code. The property of the judgment debtor vests in the receiver by operation of law, and no conveyance is necessary. Rourke v. Turrell (1912), 188 N. Y. Supp. 648. is not authorized 896 SUPPLEMENTARY PROCEEDINGS TO AN ARTICLE XI. DISMISSAL OR DISCONTINUANCE OF PROCEEDINGS. (Fiero, Spec. Pro., 3rd Ed., pp. 1818-1820.) A supplementary proceeding can only be discontinued or dis- missed, upon such terms as justice requires, by an order of the judge made upon the application of the judgment debtor. Want of prosecution does not abate it. Roscoe Lumber Co. v. Payne (1914), 149 N. Y. Supp. 331. It is not necessary that the first examination be discontinued before a second order can be made to reach after acquired prop- erty. Funk & Wagnalls Co. v. Nechamkin (1913), 3 Bradb. 481. Where an order for the examination of a judgment debtor is allowed to lapse it falls and becomes a nullity, and no order of discontinuance need be entered as a prerequisite to a new order for his examination concerning his property. Matter of German Exchange Bank (1915), 92 Mise. 351, 155 N. Y. Supp. 924. Where no service was made of an order for the examination of a judgment debtor, and its return has passed, it has no validity and may be disregarded except that the fact that it had been granted should be stated in an application for a new order; the entry of a formal order vacating the first order is unnecessary. Afatter of Dorfman v. Jacobs (1917), 100 Misc. 592, 165 N. Y. Supp. 403. Upon the institution of bankruptey proceedings against the judgment debtor within four months after a judgment is rendered supplementary proceedings in aid of execution under such judg- ment become null and void. Roscoe Lumber Co. vy. Payne (1914), 149 N. Y. Supp. 331. ARTICLE XII. COSTS. (Fiero, Spee. Pro., 8rd Ed., pp. 1820-1821.) I PP Costs and allowances were held to be excessive in Matter of Kutcosky (1912), 153 App. Div. 526, 188 N. Y. Supp. 263. EXECUTION AGAINST PROPERTY. 897 ARTICLE XIII. MISCELLANEOUS MATTERS OF PRACTICE. (Fiero, Spec. Pro., 3rd Ed., pp. 1821-1826.) While a judgment creditor has the right fully to examine the debtor as to his property, the practice of adjourning the proceed- ing from time to time merely to prolong it and to annoy the debtor is to be condemned. Frenberg v. Kutcosky (1911), 147 App. Div. 393, 132 N. Y. Supp. 9. A subpcena must be issued under the hand of the judge or referee before whom the proceeding is pending. Matter of Wilson v. Bracken (1912), 150 App. Div. 577, 185 N. Y. Supp. 435. Where no proceeding is pending at which the witness can testify, a subpena requiring him to appear will be vacated. Matter of Steinman v. Conlon (1912), 150 App. Div. 708, 135 N. Y.. Supp. 740. ARTICLE XIV. CONTEMPTS. (Fiero, Spec. Pro., 3rd Ed., pp. 1826-1845.) . Jurisdiction . Procedure. . Violation of injunction. Supp. 1 2 3 4, Refusal to appear and testify, or testifying falsely. 7 8 . Punishment. . The order adjudging the debtor in contempt. Subd. 1. Jurisdiction. (Fiero, Spec. Pro., 3rd Ed., pp. 1826-1828.) A defendant in supplementary proceedings can be punished only for a violation of an order, either oral or in writing, given to him by a judge or referee. He cannot, or at least should not, be punished as for a contempt of court simply for failing to do as he agreed. Jones v. Rettig (1917), 98 Mise. 487, 164 N. Y. Supp. 730. Subd. 2. Procedure. (Fiero, Spec. Pro., 3rd Ed., pp. 1828-1831.) Proceedings to punish a party for contempt are to be regarded as a step incidental to and taken in a supplementary proceeding 57 898 SUPPLEMENTARY PROCEEDINGS TO AN and not as an independent special proceeding. Matter of Stein- mann v. Conlon (1913), 208 N. Y. 198. An order adjudging a debtor guilty of contempt for violation of an order against the disposition of his property cannot be made immediately after the close of the debtor’s examination without notice by way of order to show cause or otherwise where it is not even pretended that the alleged contempt was committed in the presence of the court. Kern v. Zappa (1916), 159 N. Y. Supp. 76. A judgment debtor, on motion to punish him for contempt for failure to appear for examination in supplementary proceedings, is entitled to notice of the precise claim made against him and for what omission or misconduct he should be punished; each fact necessary to sustain the jurisdiction of the court should be made to appear by an affirmative statement. Aborn v. Herbert, Robert- son & Co. (1916), 94 Mise. 637, 158 N. Y. Supp. 565. Subd. 3. Violation of Injunction. (Fiero, Spec. Pro., 3rd Ed., pp. 1831-1833.) Accidental and unintentional violation of the judge's order should not be visited with discipline where the creditor’s rights are in no respect injured. B. Wasserman Co. v. Vaudeville Comedy Club (1916), 160 N. Y. Supp. 1047. A payment made by a judgment debtor on the same day a restraining order was issued, but before the service of the order, is not a contempt of court. Sturm v. Parsons (1912), 154 N.Y. Supp. 584. A judgment debtor who disposes of what interest he may have in a tontine policy upon his life made payable to his wife is not liable to a fine as for contempt for violation of an injunction order against any disposition by him of his property where it clearly appears that the guaranteed reserve value of the policy was at lease $500 less than loans previously made thereon. //all v. Hess (1916), 97 Mise. 331, 161 N. Y. Supp. 418. Unless it appears that small sums paid out by a debtor while a restraining order was in force were paid from moneys that he had at the time of the service of the order he cannot he punished for contempt. Protter v. Lovell (1915), 91 Mise. 417, 155 N.Y, Supp. 275. EXECUTION AGAINST PROPERTY. 899 A payment by a judgment debtor, after the service of a restrain- ing order, of a sum of money for board and another sum for his wife’s expenses, is not a violation of the order. Sturm v. Parsons (1912), 184 N. Y. Supp. 584. Where, after the service of a restraining order in proceedings supplementary to execution, the judgment debtor, who was engaged in business as an iron worker employing several workmen, received moneys in excess of the judgment for work done prior to the institution of the proceed- ings and disposed of the same in payment of wages to employees’ rent, household expenses and other business and personal expenses, he is properly adjudged in contempt. Schafer v. Tyroler (1916), 94 Mise. 637, 158 N. Y. Supp. 565. A judgment debtor engaged in conducting a dairy farm who while an injunction in sup- plementary proceedings was in force expended the sum of $130 in payment for groceries, wages of employees and made payment upon a chattel mortgage on a team of horses, is guilty of con- tempt. Matter of Teelon (1914), 87 Mise. 361, 150 N. Y. Supp. 729, The filing of a petition in bankruptey by a judgment debtor ou whom an order in proceedings supplementary to execution has been served and is pending is not a contempt of court. -Vorton v. Bielby (1914), 86 Mise. 644, 149 N. Y. Supp. 592. Where the judgment debtors, who were ignorant foreigners, were not informed that there was a restraining order in the papers served upon them and the order was not read to them it was held that the order adjudging them in contempt for receiving and dis- bursing money in violation of the restraining order was contrary to the evidence. latter of Kutcosky (1912), 153 App. Div. 526, 138 N. Y. Supp. 263. Subd. 4. Refusal to Appear and Testify, or Testifying Falsely. (Fiero, Spec. Pro., 8rd Ed., pp. 1833-1837.) A judgment creditor should in some manner indicate his dis- satisfaction with answers given by a judgment debtor and attempt to obtain more specific statements before resorting to the remedy of a proceeding to punish for contempt. Matter of Shorwitz v. Camincz (1912), 152 App. Div. 758, 187 N. Y. Supp. 545; followed in Baum v. Rosenberg (1915), 155 N. Y. Supp. 404. That no certified copy of a contempt order was served on a 900 SUPPLEMENTARY PROCEEDINGS TO AN judgment debtor who refused to sign or swear to his examination does not affect the jurisdiction of the court to issue a commitment for the contempt. Gumpel v. Gurvitch (1918), 102 Mise. 536, 169 N. Y. Supp. 135. A judgment debtor may be fined for contempt if he disregards an order for a second examination, although the affidavits upon which the order for the examination was obtained gave no good reason therefor, and he acted on the advice of counsel and sub- sequently succeeded in having the order vacated. Shane Bros & Welson Co. v. Henshaw (1916), 174 App. Div. 606, 161 N. Y. Supp. 115. Where a judgment debtor wilfully disregards an order for his cxamination made in supplementary proceedings on the ground that the original order was void for the reason that the court had no jurisdiction to make it, the court is bound to punish him as for contempt unless the original order was absolutely void. (Groshut v. Kinetophote Corporation (1916), 98 Mise. 558, 157 N. Y. Supp. 312. Where a judgment debtor, in obedience to an order in supple- mentary proceedings, has appeared and answered questions asked, he cannot be adjudged guilty of contempt, because he has not made true answers to the questions put to him. Matter of Silberman Dairy Co. v. Econopouly (1917), 177 App. Div. 97, 163 N.Y. Supp. 824; Moynihan v. Devaney (1915), 90 Mise. 346, 153 N. Y. Supp. 670. The failure of a judgment debtor to appear on the dav to which his examination under the order in supplementary proceedings had been adjourned is a contempt of court, although in the mean- time he had been adjudicated a bankrupt on a voluntary petition. Norton v. Bielby (1914), 86 Mise. 644, 149 N.Y. Supp. 592. Where, on the examination of a witness served with a subpoena duces tecum in proceedings supplementary to execution, his attor- ney, who was also the attorney for the judgment debtor, produces the documents called for by the subpoena, his persistent refusal to permit them to be put in evidence, though directed by the referee so to do, is a contempt of court. Steinman v. Conlon (1913). 79 Mise. 527, 141 N. Y. Supp. 79. An order adjudging a witness in supplementary proceedings guilty of contempt for refusal to testify must be reversed where EXECUTION AGAINST PROPERTY. 901 the refusal was not made in the actual presence of the court, and upon being taken before the court he answered all the questions which the justice required him to answer. Matter of Price (1912), 78 Mise. 42, 137 N.Y. Supp. 732. Where the recitals in an order made in supplementary proceed- ings, adjudging a witness in contempt, are not sustained by the testimony given upon his examination, said order must be reversed. Matter of Price (1912), 78 Mise. 42, 187 N. Y. Supp. 732. Where a motion to vacate a third party order was denied upon condition that the judgment creditor file additional affidavits, and the same are not filed, the judgment creditor is not entitled to proceed, and the judgment debtor is not guilty of contempt if he fail to obey the original order. Matter of Stell (1912). 78 Mise. 40,157 N. Y. Supp. 703. Where the debtor testified that he was the owner of no real property. and it appeared that subsequent to the testimony he con- veyed certain parcels of real property the record title to which was in him when he gave the testimony, but it also appeared that when he gave his testimony he had no interest whatever in the property, and that the deed was executed as an accommodation to the person to whom the property had been sold and conveyed before the order in supplementary proceedings was issued, it was held, that an order adjudging the debtor guilty of contempt should be reversed. Matter of Alese v. Markowitz (1913), 156 App. Div. 906, 141 N. Y. Supp. 4. A defendant cannot be adjudged guilty of contempt in failing to appear and submit to an examination where the order to show cause was not served upon him personally. Vingut v. Sire (1914), 163 App. Div. 529, 148 N. Y. Supp. 533. A witness who is not a party to supplementary proceedings is not entitled to appear by counsel therein, or to be heard upon the legality or propriety of the questions addressed to him, at least when he was not invoking a constitutional privilege. People v. Hanbury (1914), 162 App. Div. 387, 144 N. Y. Supp. 851. Where, after a witness in proceedings supplementary to execu- tion refuses to answer material questions the parties appear be fore a justice of the Supreme Court, who instructs the witness to give the information asked, and he again refuses to answer, and they again appear before the same justice who again orders the 902 SUPPLEMENTARY PROCEEDINGS TO AN witness to answer and states that he will commit him for not answering, and the witness still refuses to obey the directions of the court, he is properly adjudged guilty of criminal contempt. People v. Hanbury (1914), 162 App. Div. 337, 147 N. Y. Supp. 851. Subd. 7. Punishment. (Fiero, Spec. Pro., 3rd Ed., pp. 1841-1844.) A judgment debtor as a punishment for a contempt in disobey- ing an order to appear for an examination in supplementary pro- ceedings may be fined in a sum not exceeding $250, but it must appear that the act of the judgment debtor either did or was cal- culated to defeat, impair, or impede some right or remedy of the judgment creditor. Amendola v. Zema (1916), 93 Mise. 525, 157 N. Y. Supp. 273. Where judgment debtors deliberately and wilfully interfered with the possession of the receiver they were fined the full amount of the judgment besides $30 costs of the proceedings. Verdi v. LaRusso (1912), 188 N. Y. Supp. 568, 3 Civ. Pro. (N. 8.) 13. The fact that costs were awarded as part of the fine for the con- tempt of a judgment debtor in refusing to sign or swear to his examination did not invalidate the order adjudging the debtor guilty of contempt or the commitment issued thereunder. Gumpel v. Gurvitch (1918), 102 Misc. 536, 169 N. Y. Supp. 135. Where a judgment debtor was adjudged in contempt and fined fifty dollars for disobedience of an order for his examination, an order increasing the fine to $410 upon the theory that had he appeared for examination and disclosed that he was in receipt of a weekly salary of $100 the judgment creditor might have ob- tained a garnishee order which would have entitled him to re cover ten per cent. of said salary each week, and that forty-one weeks having intervened the actual loss or injury to the plaintiff amounted to $410, must be reversed. Matter of Schwartz v. Sill (1914), 85 Mise. 55, 146 N. Y. Supp. 1068. That no actual loss to the judgment creditor was shown to have resulted from the judgment debtor’s failure to appear for examina- tion would not prevent the imposition of a fine where the contempt was calculated to, or actually did, prejudice the rights or remedies of the judgment creditor. Goldsmiths & Silversmiths Co. v. Haas (1912), 76 Mise. 210, 134 N. Y. Supp. 602. EXECUTION AGAINST PROPERTY. 908 A third person who violates an order restraining him from pay- ing over moneys owed to the judgment debtor and deliberately pays the money to the judgment debtor’s wife, is guilty of con- tempt of court, and is properly fined the amount of the payment, with costs and disbursements. Matter of Nichol v. Wilson (1916), Ita App. Din, 667, 161 K.-T. Supp. S70. Where the contempt consisted of a refusal to obey an order for a second examination which was not based upon an affidavit show- ing any good reason therefor, and it appeared that the debtor acted on the advice of counsel, he should be fined only to the extent of reimbursement of his creditor for the costs and expenses of the second application. Shane Bros. €& Wilson Co. v. Henshaw (1916), 174 App. Div. 606, 161 N. Y. Supp. 115. A judgment debtor upon whom has been imposed a fine exceed- ing $250 and equal to the amount of the creditor’s judgment, which fine was levied under section 773 of the Judiciary Law by way of indemnity for actual loss adjudged to have been sustained through the refusal by the judgment debtor to appear pursuant to an order for examination in supplementary proceedings, no com- mitment having been issued, may not be imprisoned for more than six months, or in the event that the fine be not paid, may not be imprisoned indefinitely. Stewart v. Smith (1919), 186 App. Div. 755,175 N. Y. Supp. 468. The proper method for collecting a fine levied for indemnity and procuring it to be paid over to the aggrieved party under the direction of the court, is by the issuing of an execution or mandate against the person. There is no occasion for first issuing an execution against the property of the judgment debtor where the foundation of the whole proceeding is a judgment to collect which an execution against the property has been returned unsatisfied. Stewart v. Smith (1919), 186 App. Div. 755, 175 N. Y. Supp. 468. Subd. 8. The Order Adjudging the Debtor in Contempt. (Fiero, Spec. Pro., 3rd Ed., pp. 1844-1845.) The order must contain a determination that the offense charged was caleulated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of the creditor. People ea rel. Cowan v. Hamil (19138), 145 N. Y. Supp. 400; Feinberg v. 904 SUPPLEMENTARY PROCEEDINGS TO AN Kutcosky (1911), 147 App. Div. 393, 132 N. Y. Supp. 9; Gold- smiths & Silversmiths Co. v. Haas (1912), 76 Mise. 210, 134 N. Y. Supp. 602; Frank v. Pennaceso (1916), 160 N. Y. Supp. 1003. An order which is defective for failure to state that the refusal to answer questions was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a creditor cannot be cured by amendment as the defect goes to the jurisdiction. People ex rel. Cowan v. Hamil (1913), 145 N. Y. Supp. 400. An order adjudging a judgment debtor guilty of contempt of court because of certain answers given on his examination in supplementary proceedings and directing his imprisonment if he failed to pay the fine imposed, is fatally defective unless it con- tains an adjudication as to the specific facts deemed to be a con- tempt of court. Matter of Gordon v. Feldberg (1912), 149 App. Div. 246, 133 N. Y. Supp. 693; Matter of Silberman Dairy Co. v. Econopouly (1917), 177 App. Div. 97, 163 N. Y. Supp. 824. The indefiniteness or uncertainty of an order finding a judg- ment debtor in contempt for refusal to sign or swear to his examination does not invalidate the order or the commitment issued thereunder. Gumpel v. Gurvitch (1918), 102 Mise. 536, 169 N. Y. Supp. 135. ARTICLE XY. HOW ORDERS VACATED, MODIFIED, OR REVIEWED. (Fiero, Spec. Pro., 38rd Ed., pp. 1845-1850.) Susp. 1. How order vacated or modified. 2. Appeals. Subd. 1. How Order Vacated or Modified. (Fiero, Spec. Pro., 3rd Ed., pp. 1845-1848.) A motion to vacate or modify an order requiring third persons to turn over to a receiver in proceedings supplementary to execu- tion, certain personal property claimed to belong to the judgment debtor, can properly be made only to the judge who granted the order, or to the court out of which the execution upon the judeg- ment was issued. Matter of Flynn (1913), 80 Mise. 79, 140 N. Y. Supp. 799. See also, Bamberger-Stern Co. v. Paris (1916), EXECUTION AGAINST PROPERTY. 905 159 N. Y. Supp. 647. A judge presiding at Special Term has no jurisdiction to vacate the order of another judge of the same court for the examination of a judgment debtor in supplementary pro- ceedings. Livingston v. Livingston (1917), 164 N. Y. Supp. 419. A third party having legal title to property against which a restraining order has been issued may move to vacate the order. fathers v. Kaplan (1911), 188 N. Y. Supp. 1002, 3 Civ. Pro. (N. 8.) 21. Subd. 2. Appeals. (Fiero, Spec. Pro., 3rd Ed., pp. 1848-1850.) Section 2433 of the Code of Civil Procedure prescribes the only method for the review of an order adjudging a judgment debtor to be in contempt for disobedience of an order in supplementary proceedings. Such an order is one made in the course of the supplementary proceedings, and the Appellate Division is without jurisdiction to review it, except upon appeal from an order of the Special Term. Matter of Onetto (1915), 171 App. Div. 211, 157 N.Y. Supp. 170. cAn order adjudging a witness in supplementary proceedings guilty of contempt for refusal to answer questions, cannot be reviewed by certiorari, but only by an appeal from the order. Matter of Hanbury (1914), 160 App. Div. 662, 146 N. Y. Supp. 44. Where proceedings supplementary to execution have lapsed by failure to adjourn, the matter cannot be reviewed without notice to the judgment debtor. Matter of Wilson v. Bracken (1912), 150 App. Div. 577, 185 N. Y. Supp. 435. An order punishing a party for contempt in supplementary proceedings is not an order finally determining a special proceed- ing and is not appealable to the Court of Appeals as a matter of right. Matter of Steinman v. Conlon (1913), 208 N. Y. 198. Section 1356 of the Code of Civil Procedure does not apply to an order made in supplementary proceedings. Matter of Onetto (1915). 171 App. Div. 214, 157 N. Y. Supp. 170. 906 SUPPLEMENTARY PROCEEDINGS TO AN ARTICLE XVI. RECEIVER, WHEN AND HOW APPOINTED. (Fiero, Spec. Pro., 3rd Ed., pp. 1850-1858.) Cope Civ. Pro., § 2467. Order and bond to be filed. Supp. 1. When receiver appointed. 3. Extension of receivership. 4. Matters of practice. Code Civ. Pro., § 2467. Order and bond to be filed. An order appointing a receiver, or extending a receivership, and the bond, if any be required, must be filed in the office of the clerk of the county, wherein the judgment-roll in the action is filed; or, if the special proceeding is founded upon an execution issued out of a court, other than that in which the judgment was rendered, in the office of the clerk of the county, wherein the transcript of the judgment is filed. Amended by L. 1917, ch. 683. Subd. 1. When Receiver Appointed. (Fiero, Spec. Pro., 3rd Ed., pp. 1851-1853.) Although the court may not make an order requiring a third person to turn over property of the judgment debtor where the debtor’s right to the possession of the property is substantially disputed, yet a receiver may be appointed who can take whatever steps may be necessary to obtain the property. Harding v. Conlon (1912), 188 N. Y. Supp. 1014, 3 Civ. Pro. (N. 8S.) 19. A receiver may be appointed for property of a judgment debtor in the hands of a receiver of the premises in which the debtor is entitled to a dower interest. Harding v. Conlon (1912), 138 N. Y. Supp. 1014, 3 Civ. Pro. (N. 8.) 19. Although supplementary proceedings may be maintained against domestic corporations by judgment creditors, such right does not authorize the appointment of a receiver. Vatter of Boucher Con- tracting Co. (1916), 218 N. Y. 321. Subd. 3. Extension of Receivership. (Fiero, Spec. Pro., 38rd Ed., pp. 1855-1856.) As a receiver in supplementary proceedings, unlike a general receiver, is a receiver only for the benefit of the judgment creditor who procures his appointment, other creditors may bring supple- mentary proceedings to protect their rights, ‘and creditors who EXECUTION AGAINST PROPERTY. 907 institute separate proceedings may have the former receivership extended to their proceeding. Matter of Walker (1913), 157 App. Div. 609, 142 N. Y. Supp. 972. Subd. 4. Matters of Practice. (Fiero, Spec. Pro., 3rd Ed., pp. 1856-1857.) As an order appointing a receiver at the instance of a first judgment creditor stopped the debtor from transferring his prop- erty, where the debtor’s subsequent earnings were recovered by the receiver it inured to the benefit of a second judgment creditor, for there is no distinction between moneys earned before and after the receivership had been extended to the second judgment. After the expenses and costs of the receivership and the first judgment creditor have been paid, the second judgment creditor. to whose judgment the receivership has been extended, should next be paid in full, where he alone appealed from an order distributing the fund among all the judgment creditors. Ward v. Baker (1919), 186 App. Div. 652, 175 N. Y. Supp. 66. The bond of the receiver must be filed with the clerk of the county wherein the action was tried and judgment roll is filed. Mulstein Co. v. City of New York (1915), 213 N. Y. 308. ARTICLE XVII. TITLE OF THE RECEIVER TO PROPERTY OF THE DEBTOR. (Fiero, Spec. Pro., 38rd Ed., pp. 1858-1868.) Supp. 1. When and in what manner property of debtor vests in receiver, 2. How receiver’s title extended by relation. 3. Title of receiver to debtor’s real estate. Subd. 1. When and in What Manner Property of Debtor Vests in Receiver. (Fiero, Spec. Pro., 3rd Ed., pp. 1859-1864.) A receiver in supplementary proceedings takes the legal title to all the personal property of the judgment debtor not exempt from execution; but he takes it only for the benefit of the judgment creditors for whom he is appointed receiver, and of other jude- ment creditors to whose judgment the receivership may be ex- tended, subject, however, to any rights or defenses existing against 908 SUPPLEMENTARY PROCEEDINGS TO AN the judgment debtor at the time title vests in the receiver. Steinert v. Van Aken (1914), 165 App. Div. 206, 209, 150 N. Y. Supp. 525, The receiver does not take title to property subsequently ac- quired by the judgment debtor unless his receivership is duly extended thereto. Matter of Walker (1913), 157 App. Div. 609, 142 N. Y. Supp. 972. A receiver who has failed to duly file his bond, takes no title to the property of the judgment debtor, since such property vests only in the receiver who has duly qualified. Mulstein Co. v. City of New York (1915), 213 N. Y. 308, An order appointing a receiver operates to transfer to the re- ceiver the legal title to the judgment debtor’s interest in a partner- ship; and as the receiver cannot become a member of the partner- ship, the effect of his appointment and the resulting transfer of the judgment debtor’s interest is a dissolution of the partnership. Lovins v. Laub (1914), 85 Mise. 336, 147 N. Y. Supp. 304. A receiver obtains no greater or other title than the judgment debtor had. It follows that no title to chattels which are mort- gaged pass to the receiver from the judgment debtor, who is the mortgagor, although the mortgage is void as to creditors, if, as against him, the mortgage is good. Berliner v. Nuttnerr (1914), 85 Mise. 461, 147 N. Y. Supp. 308. A receiver is not entitled to a peremptory writ of mandamus requiring a town board to pay over to him sums alleged to be due the judgment debtor by virtue of a resolution adopted by the elec- torate of the town, if he was appointed receiver prior to said resolution. People ex rel. Duvall v. Cocks (1914), 162 App. Div. 453, 147 N. Y. Supp. 829. The receiver is not required to reduce to his possession more than sufficient property to pay the claims of those he represents, and costs, and inasmuch as he is subject to the orders of the court appointing him, it is within the province of the court to stay him from taking possession of more than sufficient property to satisfy the claims he represents. Steinert v. Van Aken (1914), 165 App. Div. 206, 150 N. Y. Supp. 525. On a motion for an order requiring a judgment debtor to turn over to his receiver a certain poliey of life insurance, which, though his wife was named as beneficiary therein, contains a clause EXECUTION AGAINST PROPERTY. 909 reserving to the judgment debtor the right to change the bene ficiary, the surrender value of the policy may be applied in pay- ment of his debts under section 52 of the Domestic Relations Law. Clark v. Shaw (1915), 91 Mise. 245, 154 N. Y. Supp. 1101. The fact that a judgment debtor made a mortgage on certain property does not conclusively establish that he owned it over a year thereafter. Shea v. Lynskey (1912), 133 N. Y. Supp. 477. Where, after the appointment of a receiver, a recovery is had against the judgment debtor for the value of stock certificates alleged to have been converted, an order directing that the judg- ment debtor and her attorney deliver the stock certificates to the receiver or be adjudged in contempt, should be reversed, where it appears that the defendant in the meantime had disposed of the certificate to her son, and that the prior orders to show cause did not restrain the defendant from disposing of the stock. Matter of Eckert vy. Truman (1914), 168 App. Div. 17, 148 N. Y. Supp. 48. A receiver takes legal title to the personal property of the judg- ment debtor for the benefit of the judgment creditor for whom he is appointed receiver and all other judgment creditors to whose judgments the receivership may be extended. Ward v. Baker (1919), 186 App. Div. 652, 175 N. Y. Supp. 66. Subd. 2. How Receiver’s Title Extended by Relation. (Fiero, Spec. Pro., 3rd Ed., pp. 1864-1865.) The title of a receiver in supplementary proceedings is superior to a lien filed after the commencement of proceedings. Wulstein Co. v. City of New York (1915), 213 N. Y. 308. An assignment of a judgment to an attorney in consideration of legal services in obtaining the judgment, and in a prior action, is not affected by the title of a receiver in supplementary proceed- ings against the assignor thereafter appointed under an order granted prior to the assignment. F’rieder v, Adlerman (1916), 95 Mise. 259, 159 N. Y. Supp. 120. The title of a receiver in supplementary proceedings now ex- tends back to the date of the service of the order for the debtor's examination, although the receivership has been extended to subse- quent judgments. Ward v. Baker (1919), 186 App. Div. 652, 175 N. Y. Supp. 66. 910 SUPPLEMENTARY PROCEEDINGS TO AN Subd. 3. Title of Receiver to Debtor’s Real Estate. (Fiero, Spec. Pro., 3rd Ed., pp. 1865-1868.) A receiver is not vested with the title to the real property of the judgment debtor, but takes only a right of possession as a means of satisfying the judgment creditor’s judgment. Bart- kowaik v. Sampson. (1911), 73 Misc. 446, 133 N. Y. Supp. 401. A receiver while entitled to the possession of the property of the judgment debtor is not entitled to hold, as against the true owner, real property which in fact does not belong to the debtor. Hwm- boldt Exploration Co. v. Fritsch (1912), 150 App. Div. 90, 184 N. Y. Supp. 747. ARTICLE XVIII. RIGHTS, POWERS AND DUTIES OF RECEIVER. (Fiero, Spec. Pro., 3rd Ed., pp. 1868-1878.) Susp. 2. Actions by and against receivers. Subd. 2. Actions by and Against Receivers. (Fiero, Spec. Pro., 8rd Ed., pp. 1872-1878.) A receiver cannot maintain an action to recover from an em- ployer of a judgment debtor wages due the debtor whose salary is less than twelve dollars a week. Maged v. City of New York (1912), 75 Misc. 634, 138 N. Y. Supp. 969. A receiver cannot maintain an action for the conversion of chattels taken by defendant from the judgment debtor under a chattel mortgage which, though fraudulent and: void as to his creditors, is good as between the parties thereto. Berliner v. Kuttnerr (1914), 85 Mise. 461, 147 N. Y. Supp. 308. In an action by a receiver in supplementary proceedings to recover moneys deposited with a savings bank, alleged to belong {o the judgment debtor, testimony by the wife of the judgment debtor in a prior proceeding against her, to which the bank was not a party, that the money on deposit belonged to her husband and children, is competent as against her estate. O'Reilly v. Adams (191+), 163 App. Div. 60, 148 N. Y. Supp. £41. EXECUTION AGAINST PROPERTY. 911 ARTICLE NIX. RECEIVER SUBJECT TO CONTROL OF COURT. (Fiero, Spec. Pro., 8rd Ed., pp. 1878-1880.) Cope Civ. Pro., § 2471. Receiver and his accounts are subject to the control of the court. Code Civ. Pro., § 2471. Reciver and his accounts are subject to the control of the court. A receiver, appointed as prescribed in this article, is subject to the direc- tion and control of the court out of which the execution was issued, except where a receiver is appointed by the city court of the city of New York or by a county court, or a justice of said courts, he is subject to the direction and control of the said court or justice. Where an order has been made, extend- ing a receivership to a special proceeding founded upon a subsequent judg- ment, the control over, and direction of, the receiver, with respect to that judgment, remain in the court or justice to whose control and direction he was originally subject. He shall keep accounts of his receivership and vouchers for all moneys paid out. An interested party may appear by serv- ing upon the receiver and filing in the court a written notice. The receiver may file his account and thereupon move for either an inter- mediate or final judicial settlement thereof. Should the receiver fail to file an account and apply for the above relief within a reasonable time, an interested party may apply for an order directed to the receiver. The account must contain a full and true statement as to all property and the disposition thereof. It must be verified to the effect, that it is true to the knowledge of the receiver, except as to the matters therein stated to be alleged on information and belief, and that as to those matters, he believes it to be true, that the sources of his information and grounds of his belief are therein set forth, and he knows of no error or omission to the prejudice of the judgment debtor, creditor, surety, or other person interested. All vouchers must be numbered and classified and « summary of the totals, together with the total payment made or due to each person shall be made part of and accompany the account. The court may direct the receiver to attend and be examined under oath as to the account, the discharge of his duties, or any other matter relating to the administration thereof. He may be allowed without a voucher, any proper item of expenditure for postage, affidavits or acknowledgments, or other item, not exceeding five dollars, for which a voucher is not customarily given or obtainable, upon specifying in his account when, to whom and for what the payment was made; but all the items so allowed shall not exceed one hundred dollars. An interested party may contest the account after appearing by filing written objections thereto and serving a copy thereof upon the receiver or his attorney either before or after service upon him of a written notice of the filing of said account. The time within which to contest the account may be limited by the court. The contest shall be confined to the items or matters thus objected to. Aunt waa Vee. g Gee aur ioehdaees ss Sms, Reha SoaL DOR ORS 663 Courts, JUTISAICHON: 5.224 anc agsoe ad Meade MEERA Gee twa See DS 659 power, when: exercised, s-cacwedda wa deduns tea damm adore pubs 659 death of incompetent, disposition of property ...............0...005 671 hearing before commissioners or in court ..............-.- eee sees 662 incompetent, death, disposition of property .................-..000. 671 JULISCiCtlOn Of COUES .cueirsc ie ageam aie ned Gia. hREswdey anes 659 petition, notice of to be filed, recorded and indexed, effect ........... 661 when incompetent in state institution ......................004. 660 practice, miscellaneous matters ........-- 62 +e cee e eee ee eee eee 665 Supreme court, Jurisdiction «5.2 s.6geseden Fae woud ys cas daesie wee alleen 659 Common Law. See Demands, Assignment and Assignability. Comptroller. See Tax Law, Certiorari to Review Corporation Tax. Condemnation of Real Property. abandonment of proceedingS .......... eee cece eect eee eens 713 amendment of proceedings ......... 6. cece eee eee eee ene eens 715 ANS WETS 2.6-¥ deleis 5 pe ad TA a Mek Se eee ears MEA Fe Bae: GES AIEEE 684 appeal to appellate division .......... 6... eee eee eee eee eee 716 Court Oh Appeals: sacustenreieneae ates a eh e< sea cea ent eaaiee oes 718 944 INDEX. Condemnation of Real Property.— Continued. PAGE APPCATANCEs «040s asus eV Ge eta seat Dee Se ee eae Ree a hee fea eS eS 684 APPRAISAL: TOW 0.5 hast. Spananaucnaile ava.) haciustd averse Roatan Bayne, see decealn AGT aaa 718 award, apportionMent 2... c6csas sess Moye dee pew setae ehaweae Lewd an 703 ANGOROSE a8 “seacete sas Sag gate Genesee PAAR, Be a EE eA eon ann 708 general PrOvISlONS: 43 shy Keas reneraes tedeaeeelnn cea cud tone ne 703 Canal PUrpPOSes) <4 adders ds Gimce seta sedueee sense eee teed ee Ae 701. COMMISSIONS, CPTOLS 5.5 bees a scones Sea. gujng dena tidad ga dincene 8 BS AoA eC Move ou 706 general powers and duties ...... 0... cece cece eee eect e eens 688 GOMPCVSALLON: 9-55 re, doses s ararngueva ens ire sheineiny “Beavece BhsUAaecaLe gad WibananainemIe Te aE 675 condemnation law, definition and history ...............0. seen eens 673 SCOPE 32.4.5 cafes Vesa ds MUS Leche ees Sede t a ades eee Wesecee A 680 COBUS each a sina ern Mace satel ns h.aneed iad dosgeegeare ey hd waged iarmdauueshidl sta yeueda ARAL 709 damages, general rules as to allowance ........... 0000 c cece eee eee 692 deséription: of lands) s.:-iiecccc sae ada Peewee tome tae A 682 GiscONHNUANCS g0.6 cee eck one ies Uwe ETe) He Rast o ey we 713 CM Cti 4s 4 gues tere eee VEE eowee aa eee Leen g SAMeOE eve RORY Seee 712 CVIGENCE 4's" 5: ss teach ed Ee een Y We hcee adabed eos Gelb ted teas 690 final, OLder, CONTENTS. i cngchitisaa ds ttted GuadoGueN ba 8 cde guieunaete eA 705 hearing before commissioners .......... 0.06 e eee e eee eens 688 OVIGENCE ce cee reese tsa daa wea RG ra RIN are BEET ce 690 highway PULpPOSS 646 cowy ei ce eK Danae Gara cone ga 701 how obtained sa wsevecss see ess kes vcuduae essen peed bes eas taeda Rees 705 JUASMENT: 2 eos uae Shee Meets Pete e EY ceey sade BC a Ee yea eS 686 TAC Syisi-ih5- 2 seaticae Saecsiaw traknc ae eRe mag ener aeaten S UeeMmera Sh amwr Me anne Tate 715 MUNLCIPAl PULPOSES: # iccig’e s2.0 58 peekeneided baal duane Saks oa aie Zale NRes 697 objections, when to be raised ......... bce cece cece eee eee 715 PATEICS isis. he cise ek ees S Ses Seana Ee ead HSU Mareeba ees 681 petition, amendMent: v2.2 s-.n09: ssigiguies son read eww te eoee se dae nas 683 SPVICC gid bic evke eed eae Seed auibese EAD dee a Bie Leek ex Oe 683 possession of property pending proceeding .....................04. 684 power, extent and limitations .......... 0... cece cece eee eee eee 673 may be delegated for public purpose ........ 05... see eee eee eee 675 practice, general ProvisiONs: a6 is nicaneacsyersdcawes saree wamewe ane 714 property subject to appropriation ........... 6. cece eee eee eee eee 677 prospective benefits, allowance for ............ cece cece ee eee eee eee 696 Pailroad Purposes: «.csauders'erogecesySeae Posed MESA CELE s aa OEE OWy 700 statutory provisions, construction ........---... eee eee eee ence eee 679 statutory requirements must be complied with ....................0. 681 structures, ‘value? ¢ 22-42 .4.ceemalen toa eo etiatls Fab Men eae tates mes Wes 696 title, prerequisites to vesting ©0100... 6. e eee eee eee eee tees 705 CVA oe etsigs tyne PAaE boa e eae es, Re goes Wee bes 686 VONUC 24 wht ie Mos eeh eed escans pede sree Kees Ode Mee ksoe Rea ne 683 WALER BUP DIY 2.) daree ta ot cee eee ele ee Mo en ee eee daca. d 697 Condonation. See Matrimonial Actions. Contempt. See Habeas Corpus. appeals i..4 gse17 sek weet ydenaeey apuMebadeie ed ces deeeRTee eee & 739 civil distinguished from criminal ..........-...... 00 cee eee eee 720 INDEX. 945 Contempt.— Continued. PaGE Civil defenses and excuses .... 6.6... cece eect eee eens 734 injunctions, vidlation:..«.i aater ae CaN eee RaAa Chase RING CoAA seme 50 Separate ACtions: «x20 peyee a nace ws aied Hawn Gare Gu Eeeen Wal gee 49 temporary in JUNCTION) sajsscss sd waded oon ee eae ee yee Le 57 directors, judicial supervision ........... 0.20.0 c cee eee cee eee 32 dissolution, educational corporation, appointment of receiver......... 61 temporary INjUNCHON: 2. escemsanvsersecns Mabe ura ges ea Shae eee es 57 voluntary, receiver, appointment ............ 06... cece eee eee 61 dissolution action: 2. s:sain wren w aces Behe a eee ete ange eee eS 46 directors; Wability. <4 ssee.ge gst nang oe ie py y vanes Bema bande 50 federal courts; Jurisdiction. .scascss¢e¢0. seerse see a ee case nes ades 47 FUAPINENE sean pane Syms cate Sees e Ahk BOE Aca wea Kee eee 50 entry and filing certified copies ..............--.20022-0 05 51 property, distribution by judgment .....................---00-. 50 receiver, appointment of temporary ......--....-.2..02--02 eee 48 powers and -dities. .asccccni Gan hodwtes to eG ame 49 PETMIANCMG: cm ois d ac gawd gine ware Te Mamen.e dtea le A aaa aeeieee A gla 2a 49 spéciall franchises: cimcve sce gee er yoee cabs cecewg see sesaes 47 stock subscriptions, recovery .. 2.0.6... cece eee 50 stockholders, liability ........... 0.6.0 cece ee cee eee eee es 50 LeMPOLAry AN JUNCTION «.cnacueeddaau, some de deed Gad hyped enews aca 48 WHO MAY DNS aasonatschadadowdeddy swan) coc eeRies Lana 46 dissolution of, voluntary, appeals ........... 2.660 746 COSTS ess 6AAirtiinaes Gar ota os CaSO, S HOES EAR bea Ghee RACER ASE 745 directors, proceedings by ......... 6... c cece cece cence teens 741 OXPOUSES: 4.3/4. 5.acianrg aontegnge adie a apenlene Sion ek asta ba aban Sree tee a 745 finalsorden,. CHEGE iarsse yoascnseues otee sa soacateed Rov BS aig aoa Mie ReeR a a eal 744 INJUNCHON: oo. ey ead gas-0 SAMOA yea wns webbed e oyeaee sae sags Ge 743 INDEX. 947 Corporations.— Continued. PAGE miscellaneous:provisiONnS: «0.2.08 csend sa rakee eed cdma Res Mame 745 order to show cause, application to vacate..................000- 743 compliance with statutory provisions....................0. 743 Peon: «255, cckals de eae + Relea ieee teehee bee ae hs g 742 BAPPHCAtiON tO VACATE gency cess tells aus Aautiew Doe. a penis ad Wales 743 PFACHCE «6.4 games ceadamerd veges s dees Mats ead eaws aye ewoee s 746 proceedings, ‘authority of court.<. 6+ ccqay sedans aa aaa es vow seins 743 by directors and stockholders ..............-..0000 eee eeee 741 receiver, permanent, appointment ......................0 00 eee 744 Teter, LES: scawiais hasan schaiawesans Teale sey weaned aetatnad mee 744 stockholders, proceedings by ............ cess ee cece seen eens 741 foreclosure, receiver, appointment ................ 000. eee cece eee 60 foreign corporation, jurisdiction ................. 0... eee ee eee 22 when. it may sue OF berSWeds 04 cur keine woe ta site be ome Obaeea nae 22 judgment creditor’s action for sequestration ....................--. 45 judicial supervision. Dees Catcher ha Ae ane RNa aehek bbe ad ae aataD 73 distribution of funds, preferences .................- eee ee eee 758 UbieS: 6 6.8 ea concen 5 Gian nekigsag eeadaolétn ba dooce vgehend Rianeadelnaem aie 757 duties and liabilities, additional .............-........-...000- 74 former code provisionS .....-...00cece cece eee ene eenes 61, 62 BID TITGY fecaeos eases Bay asiare Gedtale SB dh tagcat Anais ayseeg en eee Rae A 67 permanent, appointment ........... 0.6... cee eee eee eee 755 POWELS ANA CUES: sc cceaanye sa seavay Heed ae ese eae Ls 69, 756 property, title tO ip smnaad iar panida yore awry Mens gaeiaE Le eee 69 real property, certain may hold............. 0.6. cee cece cee ee 62 removal.......-. PE MEEORT ESCs ORM eg g Riess 68, 73, 74 application by attorney-general............... 0.0. eee eee ee 73 revised statutes Provisions .......... 0... cece ee cee eee eee 61, 62 TUS WES are eee oer mage A i casts bee Sach tl cae eueaier areata 69 statutory “Provisions <2 ao nets AG Go Daa + eg eRe seats A ya ack WAISMS be Pu 113 954 INDEX. Dower.— Continued. PAGE PPOWISLON IN VOW. OF sje ecnce ts scoaiela. eco dcute.d 4 ovine gn p-kie waayela aia’ Gomme Ow ema 108 CLO CEL ON sso. gh 25 6 ais save ousica asia cna a mab: Bipld Sev whaisbu aera aera tera eB) baste as 109 Lorfeited sa sc suave ved ews sie eles aa welucan’s neoy doula oligo wes 113 quarantine of WidOW ......-... ccc ceee eee eee eeeee 604 SEORGGE BREE 114 release Dy Attorney :iciss Heads 5 tides Si 2a Podnida Howe ace SHEE AES 112 PY GUVOPEEE WOMMAD: wiciice badder linn ie xe Heaioiad @.wla. gumlecmi ee aratero guna 112 HEMET. oan ceca ses tactoaes Sedans wire ig Bees ese euaes ata te hee libres oe pea 115 Drunkard. See Committee of Lunatie, Idiot or Habitual Drunkard; Infant, Sale of Real Estate of. Duress. See Matrimonial Actions. E. Easement. See Real Property, Action to Determine Claim. Ejectment. adverse possession as a defense .......... 0.6 cece eee teen eas 131 grantee of lands so held can maintain..............-..0.. sce eee 123 COM PAM bes fara tx hoe Bee ead dco de en dtgeaiaed Sioned we Ror AS Salata, Wied an wae 128 COStS iii) tis tee ie ied Ahh GRRE RMS Ae WQS SERRE RSME S heer aie 143 CaMa ees! og at GL areas Daa wee ns Gas we meee area eS 137 defendants, who may be and who must be joined as................ 127 defenses, adverse POSseSSION ...... ccc eee cece teeter ee ee eens 131 generally: «25. sein so eeteee sees ke meets cee eee eee hagas 130 HOw Pleaded eintcnot seo wast wie Eecag hs SE wM Reel e aed ala tae deeds 130 Legal and CGIta ler ch5 ie sonata aaa We buona eaneneyermiaa ele eae aades aa uate 130 ENCTOACHMENTS:.. 4. aveea nccaew eae Clas cea Deakes abs dig’ Phang aeons 121 equitable title cn asecsion aot mg ese oLonad Make ENA ew eA Ns VER wEGNE 121 evidence necessary and proper ........- 0 ese cece eee eee eee ees 138 immediate possession, persons vested with right can maintain........ 123 joint tenants, one or more can maintain .................00 0.000 ee 122 judgment, effect when rendered after trial of issue of fact .......... 142 vacating, effect on possession ........... 00. e eee eee eee eee 142 SVU EBL able 90522 ser oceeionanel hed Satusectode Saeco dune alata NE BIS ecg arma OS NS 137 limitation as to strip of land. 1.36. 660sscee ck veiw edie nee ee ees 121 mortgagee cannot maintain ........... cece cece cette es eeees 120 NA twve: Of CHOW ve cysddu'sto dele dled a adie g sepa DS ands RIOR ST sess kaae 119 NEW rial yscsnag iets mewn Woe ee Hawn ge 4s aes eds dine baa eehauaes blue 141 possession gives presumption of title ............. 0.0... e eee eee 127 PEACH CO eect sant ances daa 68 Abd gaiduduaueld tS elas wrchauanea aaron tanada kee ahs 137 PUPPOSE OE ACHON 522 ssqnenaios chia cheer a eaw dma ties epaldaeey eases 119 recovery, plaintiff must recover on own title ............ 00. e eee eee 124 possession gives presumption of title ............ ccc cece eee eee 127 what necessary to entitle plaintiff ........... 0... eee eee eee eee 124 rent and profits recoverable............ 0... ce ccc eee e eee ees 138 BeVverance Of ACHION acco eae ca clo lV edn ds Waeme hia OeY Rees eee eae ekee 138 INDEX. 955 Ejectment.— Continued. Page title, possession gives presumption ........... ss ee eee ee eee eee eee eee 127 VELCICt w.g.c Karen ewan Peewawees tar cen se sgaosenyiwes OPEC bE eRe 140 WHED, MAIN CAIMADISs voce sas Swed Ueanes Panes RO Hew TA ed Soret cd caer e 119 TOT MAM AINAE =. cox dda aie dre God ghee VEN RAWAL Raw PAGEA MESES BA DRE Ea 221 Peneral PLOVISIONS. s<-s aavlace ee egd psceqonn edae eacpnauueee Ged VES 206-209 incestuous nnd void marriages .......... 0.00... cece eee 206 LdiOey OF WMMACY ven Sac een ean G ame ae eae REGS we 219 INLANCY VS GROUI,¢ ndiidyes Mean eaaamaisi ame Touma emyae altel oe 209 judgment as evidence of invalidity .....................000005- 229 jury trial, judgment on default ............. 0.0... eee ee eee 228 party under age of legal consent ........ 0.0.0.0 eee eee ee eee 209 pliysical INGA PAC tye e.< 1) ack sl) Faced Sauechian Seowrhaainune adda cacraee need 226 HiMitatONs Of ACHMOT 5 A cordate ad pee eeaten edad aren Gam sce 226 Voidable marriages: cases scan canner ganas meseeewae caumiene gee ue4 207 QUS WEP sco Ci iaceueg set PRO L SY BEG aS ew iGuad Sateen uae 257, 265 children, custody, provision in judgment ............-......2.--.0-- 2911 custody and maintenance on annulment of marriage ........... 221 legitimacy on annulment of marriage .............-....2-.-.-. 219 support, enforcement, sequestration ....................0--.02. 297 COMPLAME cis ss aoe SY Se CAAA ee oe Mies eee Des ws Se GS ee nates “EDD PROOL OF SINCE «2c eGo UNaP Se a el onan ada Lakes cee etna ee 264 coréspondénts” tights! so.ccscaxieaagier Ahh eMeneiseaiG eens Geode ee 238 COSTS! oc, gaia Ante as MRM eI EMRE TEOMA Rad aL ee MES Oe we 311 -eounsel fees, action for annulment ............................ 228, 274 OivOnGe sb-0. ge). en8-s eee OES Ban Se SES eed Bee Veta 266, 274 BEPAVATIOM S, eewied madrese Sapa NES ude tkaspdlan Sinem: Romany eos Beane Tia 266, 274 PIActiceon MONON: £Ol ni iccadd dees io cae MAT Adee aaen tHehas mene nee COUNtETCIAINIS ocr ede ce Sea eee el Sew e MRR Eee eee ee ae Gas 265 divorce, alimony pendente Hite ....:240¢ cence essa ranean sade eene ees 266 practice:on motion fOr csdnt educa cnnwrerde pea nekee eepamee ee 207 Complaint; suMCieney: ccs cas neerawessnags pRMO Ts Aah Ree ew Oe 230 COLESPONAEN ts? MENTS sees suics MBSR TERS TE RVeReA Ty ee eek ae S 238 COUNSEl MESS 6 catia Scot: Peaua eddies dager aoe eda ee EN RA 266, 274 PLActice: OM MOLOD, LOM nc wares dear cee ee winduns P Aa nian Rune ene 26a defenses, action not brought within five years .................. 231 adultery’ Of plaimtill coi scpchae cage com Seb aapt dent ek aha gees on COMNGION s.44 p-Ab¥e dense uebinascs fa Geanee se cexe meee eens eee 230 COMMOWALLON: ois-az Roa e Sus Leo eA ta See MRAM OCG Rae Reed § 231 LOPES MN UIVORCE: sod ce hain dd same bahar yd Hib Date LAS AS 2328 UNIGESt: oc tambatehss tabeiedea ten ae adm ewe cmmace one 237 GISHUTSEMICITS: 5.942 wareague veo k Wav anche sy pa Re N wR eae BRS OE ERA ws 311 general ‘provisions. 5254 eava+ peau desta eyweteereidnn i 229-248 insuranee policy, interest of deefndant ........... gM dws ake BS DSSS 3 A RUM op caiges f esgcgson eek kui ty SAd wl tnd Badisy! Yaecandn aaa e4 face BELO) judgment, effect {bey bun SES IN hed Sub Rae ids OMS Biers Gaye adeare Oe eek 243 THOM ANDY Ol WILE «co nanceale sages aenae nee ares aoe 245 JUPISMCHOR OL COMMS: gaoewas ae anniad atud sagdtbnee ewes 209 INDEX. 963 Matrimonial Actions — Continued. Pace remarriage, when allowed .......-.-0 00000 c eee eee nee 247 trial by JULY’ ca ce Ssia hs cee Aaa ASE! adm A Miaelan dein ons 240 Dy -Teleree «2 g4nwuaed dew aantaee raises kek Reed eee TAK TS 242 POPORE ie. cpweker cee ee eee Use parentage ora me es ees 243 when and how maintained .......... 0.6. e eee cence eens 229 OVIGENCO..o Giada awe DANAE Dc aon hellen arene Baslalalald dca. hag dae 259, 279-287 husband or wife, testimony, competency ............. 052.0 rere eee ee 279 incestUoUS MATTIALES ci sccue doers mares oouadwin drapes Hy eed vals Roe Rares 206 judgment, children, provision for custody ...........-----+++5 02-0) 291 INLELIOCULOBRY. aa eS end BAT SG es pena od eR Rugs Fae Ae A 263 AMONG hal ce he es Hees eee SRS eEE Eee Lead & 263 COSTS) gas 25 Rivage a’siter coor masa wt d ga ale goa ag ala g-al ea demise 263 MOCifiealiOn nce cesar nges age raege eee eete Dee peesas seers 294 on. default, prokibitéd . 2 i... 26 bau eee ete ona ee tee be wee 288 OD TEPOLt OF GECiSION s. aavancws news aearenaetid Meee ad Bae eS 288 what to contain and when revoked ............. 0.2.0 cece eee eee 260 Marriage, Proof ce.sseaveaeas Pda vines savesoes sen veseaay ters Uae aes 279 IN ACtION SOF SEPATANION: ga.53 gcse se weau ee dene Gy ew US Shae dw eS 287 pleadings and tridl, a. cssdin daar nA dae tae ame tos 4 eee 255-259 process; indorsement: «2000.62 G.sncse cies antes Raw eSee By eee Ag 262 proof, of ‘service: ..102 ieee we deeux weer eeree eee deere rene eee Res 264 FOP see bas ant eames BOA Cae ES Seeds Beye Sees det E ede ees 257 separation, BbandoONMeNt: oo. secgeeks te steed awe eee ee eae hee 254 alimony, PENMENtE lite cciocasa wenn ads dies senna ees was an ee 266 practice on motion: Fors cj cciaet eae enck nena nun THe ed saws s 277 counsel feeS: 4252220 nee raredaderoeeeehes stays Sh eeenred dan 266, 274 Practice On MOtORGAOP gency sees Cabs ees deh aew eeu oes 277 cruel anid anhUMAT, THEATER 26 oc eee AS ee Ree EE 250 general ‘PLOVISIONS anes .orccme Abe ganas odua sence se oeee «848-255 FUPISCICHON so24, dg sicwatnneud Abs HaleldgloMinen an BRP SE puta ces eT x 249 menage, Drool wes wees = peewee yoy d Cae Hee date Sie Las Re doen eae 287 TOHSUP PORE cis) 367 building loan contract, filing 0.0.0.0... 0... cece eee eee eens 381 claims, not affected by amendment of 1916 .............2000 eres 367 contractors, assignments ........ 0.0... cece ee ee eee vee gain ising ae tie 358 SFL LSM et he dey 5 mata aero etic acai dans ain eS e ANN A ANN 358 CONSENT OF TEQNESE Sogo stilt ha do aiele b RA dada Sadun o Sa das 324 EANEM, f o55- Sod edanetanon Mea aieine MAS cee honenie ce mmm Dale heNenel Oye dane 315 preference of liens of laborers, subcontractors and material men.. 351 contracts, terms may be demanded .........-... 0. cece cece neee 355 costs in action to enforce i icaeiscaessamsr sci vowed Ones ewe eee een tas 414 ~ An-aetion to enforce .i.4vsiieb sees sanedmeseecreaeeeaedeeasees 414 discharge, by order of court ........... 0. cee cece eee eee 380 by payment of money into court ......... 0. cece cece eee eee 376 PONETANY sis gh ica eramenss Hearn hea gems e coed GSS eR 372 offer to pay money into court or deposit securities ............. 379 on sale of réal property: ais.saacei cr asawedea Sada eeeeege ade lene 377 public improvement lien .......... 0... ee cee ee eee 394 UTAGLON, 5 Slay gute bb aac d Srateatdasin mise Heese aocuatora a Gen snlale tee aupalbet ature Se anteds 368 public improvement: Hen... 21. cache dnc e sce sews cae ee wee ite 392 employer, inclusion in notice .......... eee ee eee 332 enforcement oii 42 exeulé cerien PONTE Seon EXESOLE Hea e ERE Reka eS se 4 ee 401 action in court of Tecord |. nasoaegs db a5 sawed sone y ene eaee enon 403 consolidation of actions .............. 0.0 cece eee eee eee eee 403 COSTS a trek BOR Sas easnes aa duces sana a Ok he salle ae Ue a. ulate teaiieecesr Sei Me “414 iShUTseMENtS. 62058. 2h os mena aes ere Saas Aa See adhe s by das RY 414 equities of lienors, determination ......................00- eau 404 PALES wie sede ec x que Rak Vee SME AEe Spe RE TSE GS oe a daued ae hols 405 PIM Gans IN MEW 4h esos aes cal ae es sie asea ansutee soak erapncs Sue ave eaten 405 Pleading 2... cece eee ete eee tenet ern e eee 407 PFACUICE sais BY eee eae each EOeeR LES ee hts Bike otestaeaasadan 411 public improvement HED. pea ices andes enw snmme ny aces aes Hew a 398 real property: Hew 4.15 sane neta dy vader an eda Oh Abb among da mem sew 402 substantial. performance o..ies0 ped veces Ode eve des ean eet aa eas 413 equities of lienors, determination ............... 0.00... c cece eee eee 404 extent Of Hen sy cs. aw sab etea mais ees 4aRae Nhs aoe es Raced ee ees 328, 330 TEMCO YA; Rta y Wala iiaaeen Hm aGe fants Ges aes RR ESS em Sites 312 improvement CéEMNEd) ste PS-cetaiaaesasnaag laos Be we aupnaars meg ganna 315 INCtmbrances,, COMUsIVe. as. grees einaw Hee PA bee SiR AS Med pe aeens 355 judgment, award of personal ......... 00... e cece eee cece eee ee 418 BNICIOH OY 5.5. eae cace 2 epi ae wilh sn-Gutaee- Gy raaehs mam MeHA wR erm aa Y wen ee 418 failure’ to, establish lem. ciscus cusen dive ogee ede sn x debe aes 415 ligivof certain postponed, cag.esysaeeeau eeeyet aces sae nh exe SeeS 367 may direct delivery of property in lieu of money ............... 418 not affected by amendment of 1916 ............ 0.00.00. 0 eee ee 367 public improvement lien, action to foreclose ............ 0200000 399 railroad, lien for labor on, in action to foreclose............... 401 labor performed; inclusion in notice statement 1M MOCO joie gl eau gad ne PRUE RAs Sue ea ks Aaa 336 INDEX. 965 Mechanics’ Liens.— Continued. Pace laborers! detined 00s 444s ee aeed ere eee tend Seka EEN ES SS eee t 315 liens, certain sections not to apply ............-..... Gibasiiven sa 368 Preference: Over cONtTACTOTS .9 i oi ve nen aewettaadakbatecemnnecs 351 lien docket in county clerk’s office .........00 0.22. 344 lien Jaw; construction: cacy ss eau cdle dy peewee Sy ee Me ets wes 312, 315 GENNIPIONS 5 ws, wean Sates BEESE IS TENE ee Seales ace eneetns .. 314 Wenor AeANE, w.5's seis doe ke sce s aracacie ted ounce Hed High aPonasineh tee eet, Ieee he, 314 INCISION AT NOTICE? «haa An Ace RD eee a dopa SHES een ee 332 leis, assignment, GING tei dees calcein Lage gee mages Re EE EAL 358 discharge by order of court ............ 0. ccc c eee eee eee eee 380 by payment of money into court ..............0.00.000- 0 ee 376 SONORAN Y, snc sae dais ie meechculodld Faery Mo eua enn da Me GREW MSs 372 offer to pay money into court or deposit securities ......... 379 on-‘sale-of real’ property co: dias ena titans oes dawn ee FAO E Ge 377 GUTAHON: 5 ois ar cca ban chee yeaa dss oe SNe eae BRAS ge eee ne oe 368 not affected by amendment of 1916 ........................00- 367 lis pendens, subordination of notice .......... 0... c eee eee 367 MAEM Al Man. deAHed oi. ssdceuis evar scone ve Aa dRON TA ee aware R Rae MESES 315 preference: over contractors 2c ci cee vs nas sees wa eee Se oe 351 materials furnished, inclusion in notice ..............00.. 00000020. 332 Statement AN NOMCE 24.2 eo sags aes ve eae s sees se tay ey eclees 336, 342 mortgages: CoMUsive: ise. spay ee Se oo oes A eeainls BH ol eM penarosacw aati des 355 subordination of lien to subsequent .................-00-20000. 366 nature: of TéMedy + cckwecy chs new dde hae Heed et ties Giada aa aKa 312 Motice, -AMCNAMERE sas va wis scnds Hens MARINER eR Se Haan pete 343, 348 by parthership chu. cae veans dleabowys SUaeeaee eoRHE LENE AG eS 336 CONTENTS: 5 S's edad 2844 go HERE Ha Seah Sane s AR es ay pauses 332 AUST O 2 ecg Gs Actas Sa wedged Gabrd aay) ad Lretne Satpudel betaine ce eaes 344 misdescription, effect ...............00. EY Bah Gabel Pern upced nen 333 GMISSION WN yexoy she diey ede erases Hew PENees eee TELE REE EEE wes 343 public-improvement lied 2524. ¢s.00 cessive emead caine eee rage Aa 386 BEFVICS: Of COPY |: dc piace wae CES Aa dite d eee Mh aie. cecate adatom neu? 344 VOrUNCAtl ON as: g sg g8eee os Soka agen geeRy ESR ea DS 333, 343 Owner Gefined: oii acs vec econ s vee aae Mee sas Faue ee ea Hate 314 INCISION IN NOTICE g seca g sraiodis severe whose eb tue owae MEM em Re 332, 334 owner or agent, consent or request .... 12.2... ee cee eee eee ene ee 324 parties in action to enforce ......... 0... eee eee 405 DFID SING IN MEW 245 desea seh reed saved syapads teeny? ceaw den 405 rights, miscellaneous provisions ..........-... +2. e eset e eee eee 354 partiership, NOtICe DY vs cc sadekt cyanea cag dear esaed Bee eae 336 payments. in advancenig wise ct iS tag sie gee ges ea Ae Re TANS EN 355 performance, substantial a. .3 ced god es bees hake eas eeu een we 413 pleading in action to enforce 2 iccakew recs seiibs esas yeees Sheed eae es 407 postponement of lien of certain judgments ......................0.. 366 practice in atcion to enforce! vous + tess eg ecsos atenneeeeeaseanncees 411 principal place of business, inclusion in notice ...............-.-.00 336 priority of Mens sss 243 gwaers's yee. Madi sauem sn Saad pce bernard ae buulueetecs 348 public improvement lien 01... 2.01... ccc teen nets 397 966 INDEX, Mechanics’ Liens.— Continued. Pace property, description and location, inclusion in notice...........--.. 332 deséription In: Notice: ov iis sseeccss aseee ge gatih's goats anmieseneneas 343 lien attaches to what and for what ................ 00 cece ee eee 330 public improvements, liens: s.0. ca i6 0 gadeccoe sg va etter eess SRR L RES RE He 383 answer, service on state or municipal corporation................ 400 assignments to Dé fled) cscs cies gaat mes peers dese awe tes Oe 386 ONE As. 058 do" iris Malas dA onic bem is'd Sees Shas. Orie Dalen an Gana ahead 4 eh 315 TSCM AGO Oe apd 1 alee tok roan Schsensiay ces Rne Anka diages ae dates Goa tee ae 394 Cur atiOny.5 2 @ lene dae Pees geo ee Ges) Se ees Ts ce OND ne 392 enforcement. + Gics nek scan dhe vee Ee eee uae eeeaee Pees Rea YESS 398 judgment in action to foreclose ........ 0.06. cee eee eee 399 VO ELC CoS (8.0 cia ota sced oatvaaguceint a ales Sine Sedan Gcaah sh adh pene Duos tetane ainhied 386 PRIOTItY” - cts nocuranieedas Mat see owe tide aeeeees edawS 397 railroads, judgment in action to foreclose ...........-..0.00 0.2 eee 401 labor OW) 23 seaeogae esis yd sage Paid Ss emuncediateae acy eles La seat 400 real Property sccdusvergeaivs ileeee ls gras Wee eee eG OGL EES Fea O ee 44 319 ETC Maa 8 alse ete csc atte ncn csied ms arto eR oe Pe al a re te 314 discharge of len, On-Sale 2. cose ose eed ost de deen d pee hd 377 enforcement: Of IGM: wsiwravas annie neh Rane cide be diew ga ete seat 402 extent Of Ven in4 cuniais cies Sekdag a dae ek Rea TeeGate Pde EOE Fs 328 subcontractors, assignments ........ 6... eee eee 358 consent or Tequéest gos.0ccismnawee sees ded eoates Fae Peres Pele 324 GONREE, o5)0 oo eA cases Asan eas Law ee DRAW Ee TS Ea EGE E SS 315 preference over contractors .. 1.02.2. 2.06 e cee eee ee 351 PUN ES sins cee est mip anette ate he AUIS Pe a FMS RIE Reaee Danas 352 subordination of lien after agreement .............---00 0000s ee eee 365 to subsequent mortgage ........ 6. cee eens 366 after agreement with owner .......... 0.60. c cece eens 364 subordination of notice of lis pendens .......-.... 0.6.0 c cece eee eee 367 substantial performance .......... 0.6 e cece eee eee 413 successor in interest defined ........... 006. c eee eee eee eee eee 319 time, Inclusion im MOLICE <2. ccwwde sees smd ee eee nee ne ee eee ees 332 vacating by order of Court .......6.. cece eee eee tenes 380 Who Way fle 15s seen se vee ip eee Weare Saghl Abe ge we yeas aye Aa aRe gg 319 Membership Corporations. See Corporations, Name, Change of. real property, purchase, sale, mortgage and lease ............-.--., 752 Miscellaneous Actions and Rights of Action. judgement, when. SUABIE 2 ss... caace edad Beagrie eer Cue eae ea eH eae ES 419 negotiable paper, action on lost .......... 0. eee cece beet ees 421 penal bond, Action On: as ce cnet cw creed aeemee Be Whew Regent ones 420 Misnomer. See Corporations. Moneys Paid into Court. See Partition. Mortgage. See Corporate Real Property, Sale of; Dower; Foreclosure; Foreclos- ure by Advertisement; Mechanics’ Liens. INDEX. 967 Municipal Officers, Actions by and Against. Pace See Officers, Actions by or Against. Municipal Officers and Boards. See Certiorari to Review Determination of Inferior Tribunals; Man- damus. Municipalities. See Certiorari to Review Determination of Inferior Tribunal; Con- demnation of Real Property; Nuisance. 7 Negotiable Paper. Tost ;“actiony ON. Ssc5¢.¢tusargac toe BGS Geeks Rawle Dew Wes ee Next of Kin. See Decedents’ Estates; Wrongs, Action to Recover Damages for. Nominations. See Election Law. Note. See Corporations. Nuisance. ACHION WhO CAN MANGAN occu eee sa ed eee aed ede Laem BAKER RURA SES whenat lies) wochecsee sheet ahh h4 Geetha eee SAME eee Gen actionable, what constitutes ...026c¢sauysrss Se ereesdeare yews Sue eees classification, and, distinetion, sx. cseussees sade eeiea wwe gees tiee ded LOAD CS: org. fy se scoot Sedan ibadich av 9) ata, OF DS Bedi easlod maken s wiemnueatnadnnmonne defendants and defenses ......... 0.0.0 cece cette OM BITIONS 54 sersy ug aHoes, He eg SRA GRE Ha Geom GATS eae Stein Ria Ges RO SOR EVICENCE eo xd Gavekee ee eek Pp bese ees cee een yes Gow ONE eae Seek D Rs TN JUNE LOM ce 5a coed aed aise ay so aie Ban NG ee ih hes ek oe of ns org pee legislative: dction;: Gf ECE sx wicies t6 5 24 eased! bxot Geena rdowind a dyagin Fak a buwne municipalities, rights and liabilities ............-..002 5000 e eee eee parties, general principles governing rights ................---.+.05- pleading ais. 2 va deed fa55 Bad Seed g wR SRS SEA REM eR coat yee eee sR PIACICE: coe gpa lcbila lan di giaehie maw Deeg Meee bers Meee owas Boe es private distinguished from public ............. 00.26 eee eee ee eee public distinguished from private ......... 6... e eee eee public, what constitutes ....-...... 06... ce eee ence ee eee relief pranted: :vi.29ep4 cesses yds booth oeen gs awed tes see ESD 4 TOEMEMICS i he sek SAE end mings SOR EME BE PREG oul ORES Sa eee OG Officers, Actions by or Against. See Mandamus. BON sees + He sed Moles dH DERG Re Ree ROE Ne ee RES see aa aie action by private person, Upon .. 5 aoe5sase2 4G fence sence e Steers 422 441 442 427 426 438 440 466 968 INDEX. Officers, Actions by or Against.— Continued. PAGE books and papers, inspection ....... 666. e cece 462 illegal, acts; Prosecution: a5. sane. ciwwcwak eas BAST pam SS 448 ANGUNC HONS s.4-e Seiad skigshadat ye oayAG sae eee eee eee eee ae 466 school trustees and members of boards of education................. 469 Paxpayers-ACwON 24 aireacte teeta Tema Sets beet cae RN A boats 448 BUCS ess seed e.g ii Aadays ectraiuarin a ta Wind wean Ee haaw ane luute hh Sevan Dee 464 PlCACG a a a ce HRN EARN e el RRR Rota ae nS ie LOD proceedings in Sosa cgyeas pears pasa age eed ews Ed ag ag 464 When action lies: cpimieisiaaetians awa pura dan rene aoe awe 451 when action does not lie ......... eee ce eee 457 Order to Show Cause. See Contempt; Corporations, Dissolution of (Voluntary). P. Partition. action, by whom it may be brought ................ 00. cece cece ee 472 ODOC. ta P44 gp tasns oaa minmaes DUe Re eee ea aaAle heer a ee 486 separate not allowed ...ciiseserecnees saaee genes dhe) Pees ao wn 486 when it:may be brought s+ ccsa aves cyiw ea shende ence bh qeuinna yee ae en 472 agreement, bY vecicdarvadee tetas ese mes eecuda Mande Rane ude dee 471 COMP IAIN Giles se Si ctecacrS ereecaalais eityeaal eden vn Alad WAS Del acbshaln nae Rank a thas 485 COSTS eho 28! cada aan Gsk aacuasiel alate panes tunnel Ald Snnts ita apaiaeinehc ies ay eae eda aderer adhe 500 County COUT, JUTISAICHION cic anes cecnwmineeded sg Raed Ee OMY bey hs 471 CHEGI(OTS: 28 Parties cogs osan ioe was pchgesyaae area Rens eaeNe aaa aee 482 reference as: tO gguveey ns dee usy es BERESYS EEE ESOP wes evens 492 defenses, how pleaded, effect ........... 00... cece cece eee eee 486 dower interest, how affected by sale ............-. 0.0.0.0 eee eee 494 BFOSS SUM tO DE PALM occ coeds ee add sales dow ag Gunmate de asd nae 494 CVIGCNGOR: saa. ha RAL cae Apes d Miele pebbles Ne cet hobs aeetnen ssn; Reker en neta 488 guardian ad litem, security os asacsscc6 css se a ase aoe ga eee REE 479 IDF ANS 6. tora tg oises wy Pio aly eae sto g wT BAS RA BIS Y WMD SIM ERS Tee 486 security required from guardian ad litem ...................0.. 479 interlocutory judgment: :...i cat vese aed eaewseteecccunsaceedaeeuee 492 issue of facts triable by jury .. 2... 0... ect eee ee eee e eae 491 Jot, tenants; ACtON. DY sic.ec cee hb nt cite oder ene ardege men ee 472 separate actions not allowed ........... 00.00. cece eee 486 judgment, final, contents: 2 cvss00 cccusiwieny eee ees sea dadeg ee wel ayas 496 for sale or actual partition: 004 sey aes dan ceca ed aban en gves weaae: 492 JUEy ila cers aan dgyneals qa onl tein eang VUES SB hea Lee ss 491 lienors-as parties: 2 cau cevgavexcha ged tens dys desee sed Kasegeddaea ens 482 moneys paid into court, application for...................0..00 200 502 order to compel MING. 39-34 sceg cdcctasie Pia waadlads saa Neoaueee 495 report of county treasurers and chamberlain of city of New York. 495 order of publication 0.0.0.0... ccc eee eee eee ee ee eene 486 parties, action brought within three years from issue of letters ...... 483 adjustment Of TICS 2210 amessone eat ne hice es CA giaN aa eae 499 CHOCILOTS yes cd pais Soa GAN Gachesed aaha Gee Manis wemamMoues 482 lienors... INDEX, 969 Partition.— Continued. Pace necessary and. proper m.vs+ca4 dhaves asoehi ses Meh ersan gem pewes 479 title May be tied ccs akan tee hee t Sada eee Poca ewes pass 490 URN OW ys Sao'acuan sod neck cee aa und waco heeawalgn aaa vic aah ee 486 POSSESSION: esa dead ene de eae wee Raa bRe Rad @ Baha de Gon act 473 MIC CESSATY os fog alg regi oe PART Gers AREA ShcA Ra AbS wad es Ae 475 practice, defenses, how pleaded, effect ..............5 0c cece eee eee 486 OCVICENCE 46 dibs aingd 54a MEMES Goa TAHA RE ER EEG a wee oe eS 488 Miscellaneous; MALETS. sheen edema pig td Gund eke Bete d eee SS 487 MOGICE 24d ele tc etules, Senihaan in as Hele SEGA AREAS Santis havea See 486 Object Of ACHON: wig sae seams Bode esau WEA oeS ae he se 486 publication, Order’ +445 e005 dawn vesisa dead ieaee ta ay geaegn eens 486 separate: action ‘not allowed 2..<....0ssse4seeanva2 wes va saea see yes 486 proceedings where action brought within three years from issue of TEtECES 6 yal ceaiale ad We dante pe Ake, Goh AAS G penned wach rise eye 483 questions, what triable and how ............ 0. ccc eee ee eee eee eens 489 POCOIVER gi x-4s. Heb Raaen eens Heer Eshoancoes Kasia ye seReEReeS Be 488 reference as tO creditors: .424is esas questa wee e reese TORS cage we 492 AS TOtitle: |. cscean ated sane iwee os bees ate hee Ss G gasauy de dau ges 491 sale, distribution of proceeds ........... 0.00 cece ee ee eee eee eee 498 duties of officer making sale ............ ccc eee cece eee eee 498 JUG CMON ssi: seis re pce ne ace ee Mdions Mew tiene su eee aoe wake he 492 security required from guardian ad litem .....................-.5.. 479 subject-matter s a4<. sees esis eke koa s Bowes eee en Meee ETRE MES eG SeS eH 474 tenants by the entirety” csc 2 octane pated ceeee st hse 4 25 a0 Sue's 478 separate actions not allowed ......... 6... eee cece e eee eens 486 tenants for life, gross sum to be paid ...... 0.6... cece eee eee eee 494 tenants for years, gross sum to be paid............-. 00s eee cece eee 494 tenants in common, action by ... 6... ccc eer ceccee nn sen eb ee ee eene 472 separate actions not allowed .......-...-- ee eee eee eee eee eee 486 titlé;, TEFETENCE MAS: 0»: gneiss desde AMRRO REY A A Gen Reda donde 491 title of parties may be tried .......... 0... eee eee eee eee eee 490 UNkNOWN Parties. sicc swe sine a sccu Galea ease eld ecewalN NES Ra MARE Bae 486 Partners. See Joint Debtors. Penal Bond. See Miscellaneous Actions. HEtiOM (ON 5 sie aeeNa RA R32 hd cae slaw Deus. d eine as Bae wih eigdhis @ Mee ea Mbedeinien mane 420 Penalty. See People, Actions in Behalf of. Penalty or Forfeiture, Action by Private Person for. when recovery had and to what extent..............0. eee eee e eee 504 People. See Foreclosure. People, Actions in Behalf of. attorney-general may maintain .............. cece cece eee eee 505, 512 district attorney, duties in general ........ 0.00... ccc e ee eee eee 509 EVIDENCE. 4 o bras sue Gk haga MEOH ELE Kees Rem EEE ea gS Rad bees 507 970 INDEX. People, Actions in Behalf of.— Continued. Pace LOTLOLGUNE! tia’ dub cdasnso y haut ws Galan dread dade Aaa eames La nelNe wate 510 miscellaneous provisions 0.2.0... 6.0. c ccc eee eee n teens 511 POT aMbY: satin ecard eaicg dakieentAW 5,40 © sithigusls glaciers Glaiaiig Ae oad or cee one 509 Property CSChOated: .wenes cones eine ve awean sable bere s Selene > a egiy 511 public property, spoliation or misappropriation ...............-..05.. 510 QUO: WaTranto! vs om Gene e0 ou GOES Siw PRO Bie HET BRE BEES Hep wR 511 recognizance, Porterted, ey sey ass. v deca © sca‘ ease succeed te tse Bunn ees Gace be 508 when and how maintained ............. 0... cec cece eee ene eee 505 Personal Property. See Replevin. Petition. See Special Proceedings Generally Considered. Physical Incapacity. See Matrimonial Actions. Police Commissioner or Board. See Certiorari to Review Determination of Inferior Tribunal. Prohibition. absolute writ: sc. ssirsaca canes sien es ceed Gidieninneles aeeiads Lain has eR 854 alternative writ, proceedings thereon .............. 0000 0eeeee eee ee 854 review on appeal os. eotex Hbe Pass NERY age ees SHES Qed wed 896 delivery of property to receiver, sheriff or third party .............. 894 AISCOMEMUANCE: 62 nie Syne d SS eas sca dd ae ghasi’e Maeaniens bade Ladue dale 896 GUSIMISSAL «74 cuts eke notuaaa eels S daluauled bantedceaayeh Gove MeN Rae eek 896 CXAMIBALION . ls adds usa CS GAR ecocah eNOS Aa ak res Lea Gee desk Oe 893 injunction to restrain disposition of property ...................... 892 JUTIS HON: hie es mys eae’ surces FHL Hee nd RaW RMEN alge g wlegl eas 888 Nature-ott TEMedIes:. scien gee caa me yuliRted goer Ba ERceumey esd Bae ¢ 886 order to: attend, nature: soot.es suas ee a2ees ae y wad soaked sad oe 890 SEPVICE seg coun et eS Cee hs ROE ewes PEWS ASE YO a eeew aun oae 892 to examine debtor before return of execution ................... 890 BOTVI COs so Sitch slag A said BS cole gud eee ate daus ion Gere Soca eae p et Se 892 person having property of judgment debtor ............... 891 how ‘yacated ‘or modified, sess ccceraied vee i tee eres mews 904 payment by debtor to sheriff’ ccc. cincsttagarieednsecavag ae bae dae 894 provisions when not applicable ............. 0.0 e eee 887 receiver’s accounts subject to control of court ..................... 911 actions by and aGainst: ..c. 2.220 edie sede eats toed a nalnge eed 910 Appointments ssc crswews rad draws Lene Pada sin aaoaa mE AHS 906 DONE 2.8 vaginas Seman Rae yaora a savant HesraMes arnt sete Rew Mu be ae wed E 907 extension of receivership ...........0 0. cece cece eee eee eee 906 PRACHECS 445 Shukevenereeeeee ners VSEEe a and MAA ee eG Meh hoes 907 property, receivers title’-so.20 sere sees tag 4 Stee Barska des 909 10: ROA CStAtesS.3 sa esi ee Be og eae do pee eae teens 910 when and how vested in ........ 0... cece cece cece ences 907 referee, examination before ........ 0.66. c cece eee cence eee nes 893 qualifications and supervision ..............- eee e eee ee eae 893 976 INDEX. Supplementary Proceedings to Execution against Property.— Con. Pacz subpoenas! <.2 «ae ieaas welenkse weeks Reed « eeta sa cneee dyson eg idea’ 897 who entitled to remedy and against whom ......................5. 888 Surrogate’s Court. See Contempt. T. Taxation. See Mandamus; Real Property, Action to Determine Claim. Tax Law, Certiorari to Review Assessment. AD POAal st csereomy Cetera Neneh Seach tie Nale Bid Ses ONAN S Shae dasekae hoes oes 919 ASSESSOFS, TEVIOW Of ACTS ues kd ic awww n eye LHe GEA Ess HRMS eH 917 corporation tax, review of determination of tax commission by cer- tiorari, regulations ............... gige esteemed gages 931 revision of accounts by tax commission .............-....00-05 930 COStS 2% os Gay detest Ge a PY Seen dn Cokes ose Gs s4 ede ee ane Te ee oe 919 evidence, powers of referee ...... 6... 6. ete eee 918 inequality as basis for relief ........... ccc eee 917 miscellaneous decisions and matters of practice .................- 918 nature of proceedings and when available .................-..000055 912 petitions Contents, 205 snewecee ate aces HEME Ae RAG ONS BRD AE Roeser meen 913 practice, miscellaneous matters ........ 06... c eee eee eee 918 refunds of tax paid on erroneous assessment ...............-..-55: 920 FOUN oss Ave soe eh agekie sees esas RAMEN aniseed niga vase Sees 915 PrOCeedINGS UPON veassccsenucanysveaga Veaee eee eee eee Pees Weds 916 review by court, nature and extent ........... 6. cece cece eee eee eee 916 special franchises, certiorari to review ............ 66. eee e eee eee ee 921 PECUTD Gk: Laser nies edece eta ckanaea tiny a dea Bos 922, 924 ASAT Ee gies Ge apcausya® wi sass assed Syaudsn a aaea tudatrnncony WiFi UpnadBeantrcnaaouepale dhsn Acetheadh 923 MetearmiNngs THe sess cigs Reta rtwa dle at aane tn eke Te Owe 929 PTACHICE: x. jo: 6. winners MAE e ea a eR eae RG GOMER Rad aotave wate aera 925 special proceedings: ..sccaviises eevee sae eaetndeaer sea eea ds men 922 statute, construed and applied ............ 00. eee ee ee eee eee eee 926 Tax Law, Special Proceedings Under. cancellation of personal tax void for want of jurisdiction ........... 933 collection of taxes, sequestration action by attorney-general.......... 934 supplementary proceedings ............ eee e eee ee eee eee eee 933 taxpayer removed from county .......... ee eee e cece eee ee tenes 934 Taxpayer’s Action. See Officers, Actions by or Against. Temporary Injunctions. See Corporations. Tenant. See Summary Proceedings to Recover Possession of Land. Tenants by the Entirety. See Partition. INDEX, 977 Tenants in Common. Rage See Partition; Real Property, Action to Determine Claim. Tender. See Foreclosure. Timber. See Real Property, Provisions Relating to. Title. See Petition; Real Property, Action to Determine Claim. Torts. See Wrongs, Action to Recover Damages for. Transportation Corporation. See Corporations, Name, Change of. Trees. See Real Property, Provisions Relating to. Trespass. actions by and against executors and administrators ............ 77, 78 Trespassers. See Real Property, Provisions Relating to; Summary Proceedings to Recover Possession of Land. Trustee. See Corporations; Decedents’ Estates. powers, duties and liabilities .......... 0... cece eee cece eee eee 61 resignation, removal and appointment, order without notice to inter- OSted. PELIOH cis! s Ga Ga. ade cna diene Hades niecnes see eben ha bees 936 SUDSTICU TE, SAE” DY ae sagas eee 560 libel, privileged .........-...-..--. AOvYT ee ekaTeMEM TEE eee eeS 574 slander of woman, action for, pleadings ...............00eeeeeeeeee 574 suing in name of another, action for ......... 6. cc cece ee eee eee ees 560 [Whole number of pages 1004. ] TARO Aaa as HH er tieetate? PA See : AOU SCI CCH aa : : eee seh B est BOO at i nit ) ara arte teat Ue) Dn Baonog i OU pny