« EelmineJätka »
by the judgment interest at the same date was direc- April 26, 1887. Crook v. Rindskopf. Opinion by
BANKS EXCHANGE ACCOUNTS CERTIFIED wrong, and that after judgment the mortgage was
DRAFTS. - By a custom among banks in the city of merged therein, and thereafter plaintiff was eutitled
Rochester, commercial paper held by either of such to interest, not by virtue of the mortgage, but of the
banks, payable at any of the others, instead of being judgment, and that the interest should have been at
paid when presented at maturity, was “ certified " and the lawful rate, i. e., six per cent. To the same effect
returned to the bank presenting it as an item of was Salter v. Railroad Co., 86 N. Y. 401. In Prouty v.
credit in its exchauge account with the certifying Lake Shore & M. S. Ry. Co., 95 N. Y. 667, the judg
bank, and not as a negotiable instrument. On the ment before the court was by its terms payable with
nineteenth December, 1882, the City Bank received interest. In O'Brien v. Young, id. 428, that provis
a certified draft for $800 from the plaintiff bank, which ion was lacking, but each judgment was recovered
according to the custom, the City Bank was entitled when the statutory rate of interest was seven per cent, and as to each it was held that the amount of interest
to have credited in its exchange settlement with plainto be collected on execution must be governed by
tiff on the following morning. The same day the City
Bank transferrea said draft of $800 to the defendant, statute, and that the rate changed when the general
in settlement of its exchange account with the latter. law reduced that rate to six per cent. Laws 1879, cb.
On the morning of the 20th there was a balance due, 538. The fact that one judgment specifically provided for the payment of interest was not supposed to create
after deducting the $800 draft, in favor of plaintiff
against the City Bank, which was then insolvent. In any distinction in the application of the law regulating that question. The law of the State made every judg
settling the exchange account between plaintiff and
defendant on the 20th, defendant claimed credit ment interest benring, and the obligation for its pay
against the plaintiff for the amount of the $800 draft ment was not increased or varied by inserting a di
so received by it from the City Bank. It appeared rection to that effect in the record. The provision in the judgment of Utah, therefore in regard to interest,
that defendant, at the time of receiving said draft, had
notice that there was an exchange account between is of no more force in regulating the rate of interest
plaintiff and the City Bank, and that the latter was in upon suit brought in this State tban is the statute of
a failing condition. Held, that such receipt of the that Territory which justified its court in allowing it. As the increase is allowed, not as interest, but as
draft by defendant did not entitle it to the rights of
negotiable paper, and that under the circumstances, damages, its measures must be that of the State where
defendant could not set off such draft against plainthe action for its recovery is brought. The lex fori
tiff's exchange account. It is claimed on the part of goverus. This is the necessary result of the decisions
the plaintiff that the certification, being of an accepin this court already referred to, and the same doc
tance payable on time, was notice that the paper bad trine, as to similar cases, prevail in the courts of
matured, and been presented for payment at maturity, Massachusetts. Clark v. Child, 136 Mass. 314. May 10, 1887. Wells v. Davis. Opinion by Dauforth, J.
and that as to all the parties to the bill the certifica
tion was a payment which discharged them, and the ASSIGNMENT FOR BENEFIT OF CREDITORS
paper had lost its negotiable character. On the other AND INDIVIDUAL DEBTS — FRAUD - EVIDENCE – IM. hand, it is claimed that although all the parties to the PLIED PROVISION.- (1) Even assuming an assignment bill were discharged, and as to them the paper had for the benefit of partnership and individual creditors ceased to be negotiable, yet as to the bank certifying gives the assignee authority to pay the individual it the certification was equivalent to a certificate of debts of each partner from combined individual assets, deposit payable to bearer on demand, and as such was tbe assign ent is not void as being in fraud of the in- negotiable as against the bank. We do not deem it dividual creditors of one of the partuers whose assets necessary to pass upon this question, because to entitle are greater than those of his copartuer, or whose in- the holder of the certification to recover upon it withdividual liabilities are smaller in amount, in the out regard to the equities between the certifying bank absence of evidence to show that the assignment will and the party to whom the certification had been operate unjustly to a substantial extent in that re- issued, it was necessary, not only that it should be spect, or that one of the partners is interested to a negotiable, but that the party claiming on the certifigreater extent, and therefore entitled to a larger share cation should have received it in good faith, and withof any surplus of the firm assets, after paying the firm out notice of those equities. It seems to us that the creditors, than his copartner. (2) Where the only defendant in this case does not, under the facts found, effect of such a provision would be to diveri a sum of occupy that position. The defendant received the about $20 from the payment of debts amounting to certification with notice that it represented an item several thousands, the insignificance of the sum di- merely in the exchange account between the City verted will furnish proof of absence of fraudulent in- Bank of Rochester and the plaintiff, and that whether tent. (3) Firm creditors cannot plead that a provis- any thing would be due or payable upon it would de. ion in an assignment for the benefit of partnership and pend upon the state of the exchange account between individual creditors, which gives the assignee author- the two banks at the close of the day; that it was ity to pay the individual debts of each partner from certified for the purpose of being used in the settlethe combined individual assets, invalidates the assign- ment of that account. This was notice that it was inment. (4) In application of the rule that the con- tended as a mere voucher, and was not made for purstruction of an assignment for the benefit of creditors poses of negotiation; and it is expressly found that should lean toward its validity, the law will supply the the defendant took it with notice that in transferring oinission of a required provision that after payment it to them the City Bank was diverting it from of firm debts the residue should be divided into two the purpose for which it had been certified by the funds for the payment of individual creditors, and plaintiff. It matters not that the defendant did not will not impute to the instrument an authority to know the actual state of the exchange account between illegally apply combined individual assets to the pay- the City Bank and the plaintiff. As a matter of fact, ment of individual debts, especially where a provision it appears from the findings, tbat at the time the de. therein contained for the payment of any eventual fendant received the plaintiff's certification from the surplus of the executors or assigns of assignors indi. City Bank it had been more than paid by certifications cates an intention that such division should be made. which had been made by that bauk, and were held by
the plaintiff. But it is not necessary that the defend- strained, and permitting him, in case of judgment, to ant should have had notice of that fact. It knew that take any other proceedings that the law and practice there was au exchange account between the plaintiff of the State court allowed. May 3, 1887. JcDonald and the City Bank, and that the certification was sub- v. Davis. Opinion by Peckham, J. ject to the settlement of that account on the following CARRIERS RAILROAD COMPANIES day, and also that in the ordinary course of business, PASSENGERS. – In an action by a passenger against a it was probable tbat the City Bank held paper certified railroad company for assault by a brakemau who atby the plaintiff against which this certification was tempted to compel him to go inside of the car on applicable. By insisting on the City Bank settling which he was riding, refusal to charge the jury that with it on the 19th, contrary to the general custom, “although there were no seats, and people were standbecause it doubted the credit of the City Bank, and ing in the car, yet if there was room for plaintiff to taking from it this certification for that purpose, it stand inside, he was bound to go there,” is error, and was endeavoring to cast upon the plaintiff, in case it ground for a new trial. It is a matter of common had offsets, the risk which it was unwilling to incur, knowledge that it is considered unsafe for passengers and to subject the plaintiff to the chauce of the City to ride on the platform of a running train. By so Bank providing other means, if required, of meeting doing they expose themselves and the other passenits liabilities to the plaintiff. Whatever might have gers to unnecessary danger. The law exacts of car. been the rights of an innocent party taking the certi- riers of passengers the highest degree of care for their fied draft in ignorance of the purpose for which the safety. The control of trains is necessarily placed in certification had been made, and of the right of the the hands of employees. It is impossible to foresee all plaintiff to apply it on a pending account, we cannot the exigencies which may demand prompt action on hold, in the face of the facts found, that the defend- their part to avert danger or accident. The safety of ant, in taking this paper from a failing bank, under passengers on railroads requires that they should comthe circumstances became a holder in good faith. It ply with reasonable regulations, and acquiesce in purchased what it knew to be a mere voucher for an reasonable directions of persons to whom the manageitem in an account to be settled, and necessarily took ment of the train is committed. It is obvious that the it subject to the result of the settlement of that ac- crowding of passengers on the platform of a steam count. May 10, 1887. Flour City Nat. Bank of Roch- railroad car may seriously embarrass the train-men in ester v. Traders' Nat. Bank of Rochester. Opiniou by the performance of their duties, and it is, we think, Rapallo, J.
the plain duty of a passenger standing on a platform
to go inside the car when requested so to do by a BANKRUPTCY - DISCHARGE - EFFECT UPON JUDG- person having charge of the train. The request to MENT — STAY.- - (1) A discharge in bankruptcy under charge was material, as bearing upon the question of act of Congress of 1867 operates as a bar to a suit upon damages, assuming that the use of force by the brakea judgment founded on a debt existing at the time the man was not justified. Although the brakeman may bankruptcy proceedings were commenced, which debt have been mistaken as to his authority to enforce a was provable, and in fact proved, in the bankruptcy compliance with the request made to the plaimtiff, yet proceedings. The question of the effect of such dis- it was the duty of the plaintiff to comply, and his recbarge, under the later bankrupt act, upon a judgment fusal tends to mitigate and explain the conduct of the obtained under similar circumstances to the one inbrakeman, and to show that the assault was not suit, has been decided, and we do not think it wise to wanton or malicious. The fact that there were no unopen the door for further discussion here. Monroe v. occupied seats in the car did not, we think, change Upton, 50 N. Y. 593-597. That case decided the ques- the duty of the plaintiff to go inside. If he had any tion in the same vay as Clark v. Rowling, supra. well-founded complaint against the company for not Nothing suid or decided in Revere Copper Co. v. providing adequate accommodations for passengers, Dimock, 90 N. Y. 33, affects this question. The judg- this did not, we think, release him from the duty of ment in that case was subsequent to the discbarge, leaving the platform, and going inside the car, although and the court simply beld that the determination, by there was standing room only. The car was crowded the judgment, of the existence of a debt on that day, when the plaintiff entered it at Houston street. He was conclusive, and the prior discharge could not be placed himself immediately in a position where he was set up to dispute the absoluto verity which the judg- compelled to submit to some inconvenience, and he ment imported. The cases of Clark v. Rowling and was not freed from the obligation to obey the reasonMonroe v. Upton, supra, were cited with approval, able directions of the train-men, made with a view to and distinguished from the one then under discussion. the general convenience and safety, because there was The case went to the Supreme Court of the Cnited no vacant seat. May 10, 1887. Gruville v. Manhattan States, where the judgment was affirmed, the court Ry. Co. Per Curium. holding, that as the discharge had been obtained be- COUNTIES TREASURER FEES AUDIT INfore the entry of the judgment, application to the JUNCTION.-- (1) Under Laws N. Y. 1810, cbap. 305, court should have been made for leave to plead it as a requiring all claims against a town to be audited by defense, and as that was not done, the judgment was the town board, and Laws N. Y. 1847, chap. 490, 52, valid like any other judgment in an action where a providing that such claims must, for that purpose, be good defense existed, but bad not been pleaded, and presented in items and verified by the oath of a credithat such defense could not thereafter be set up in an tor, the treasurer of Queens county carmot pay bimaction on the judgment. Dimock v. Revere Copper self out of the trust funds in his hands, the fees allowed Co., 117 U. S. 559-56.5. There is nothing in the case of by Laws N. Y. 1877, chap. 268, and Laws N. Y. 1878, Hill v. Harding, 107 U. 8. 631, which impairs the chap. 226, for striking off lands to a town, at a sale for authority of the two cases in this court already referred taxes, without a previous audit of his claim. (2) Into, and we must still adhere to the law as therein de- junction will lie against the treasurer, at the suit of a cided, although the courts of some other States may tax-payer of the town in which such lands are situated, have taken a different view of the question. (2) In a to prevent the appropriation of such fees, under Act suit upon such judgment, the discharge in bankruptcy | N. Y. 1881, chap. 531, authorizing a tax-payer to mainis no less a barby reason of an order in the bank- tain an action for the prevention and restraint of “any ruptcy court vacating a stay which defendant had pro- illegal official act" on the part of the officer of any cured in the original action, and permitting the plain-county, etc. May 10, 1887. Warrin v. Baldwin. Opintiff to proceed with his case the same as if never re- iou by Finch, J.
EXECUTORS ACCOUNTING WHEN ENFORCED.A testator, upon his death, bequeathed one-tenth of his estate to his son. The pon thereafter died, and after the final account of the executor of the son's estate had been accepted, an order for further accounting was sought, on the ground that the executor of the son's estate, and one of the executors of the father's estate, were, as a firm, indebted to the father's estate for a loan of its assets; and that the share of the father's estate to which the son's estate was entitled under tho will was diminished by non-payment of the loan. Held, that as the father's estate was still in administration, the proper remedy was by action on behalf of the son's estate against the administration of the father's estate, to compel payment of the share it was entitled to under the will; that the executor of the son's estate was primarily liable only for eventual damages caused by his delay in bringing such suit; and that the order for further accounting should be denied. May 3, 1887. In re Estate of Soutter. Opinion by Earl, J.
EXECUTION AGAINST THE PERSON - DISCHARGE — FINAL PROCESS-APPEAL. — (1) Laws N. Y. 1886, chap. 672, § 5, provide that * 110 person shall be imprisoned within the prison walls of any jail for a longer period than three months, under an execution, or any other mandate, against the person, to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court, in non-payment of alimony,
where the amount so to be paid is less that $500; and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a longer period than six mouths;" also, “no person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution, or other mandate, against the person.” Held, that this statute applies only to arrest and imprisonment upon final process, and does not authorize the discharge, at the end of six months, of a defendant who has been arrested and imprisoned within jail limits, upon mesne process, for concealing a part of the chattels, in an action for the recovery of personal property. (2) An order of court, in such case, discharging defendant from custody at the end of six months, is appealable, as it deprives plaintiffs of a remedy given by statute. May 10, 1887. Levy v. Salomon. Opinion by Danforth, J.
GUARDIAN - RECOVERY OF REAL PROPERTY - EMPLOYMENT OF ATTORNEY COMPENSATION --- ASSISTANT. — (1) Under section 5, p. 718, 1 Rev. Stat., N. Y., the mother, upon death of the father, becomes the general guardian of the minor children, with the rights, powers, and duties of a guardian in socage, and as such has power to make a contract of employment with an attorney for the recovery of her ward's real property. (2) Uuder such circumstances, where the mother of infant children employed counsel to recover real property of the latter of the value of $141,660, for a contingent fee of one-third, and it appeared that the questions involved in the litigation were of great importance and difficulty, and there was abundance of testimony by eminent attorneys that the agreement was in all respects fair, reasonable, and proper, the finding of a referee supporting the agreement will not be disturbed. (3) Where in pursuance of such agreement for fees, the attorney brought an action of ejectment to recover the ward's property, and when the case was ready for trial, another attorney, not employed by the original attorney, appeared on behalf of the wards, and took part in the trial and subsequent appeals, held, that the compensation paid to the latter could not be deducted from the stipulated fee of the original attorney. (4) After the determination of such actions establishing the wards' title to the lands
of their father in New York, certain real property in Tennessee, which had belonged to him, was sold for the benefit of the wards. Held, that the Tennessee property having come to them aud been realized through the establishment of their title to their father's property, under the terms of the attorney's contract, by whicb for one-third of the proceeds he was to recover as much as possible of the ward's property, he was entitled to one-third of the pruceeds of this Tennessee property, although as to it no litigation had been necessary. (5) Where it appeared that the attorney had employed an associate to assist him in the litigation, held, that the waiver by the latter of all claims agaiust the wards on account of such employment should not be imposed as a condition to the attorney's recovery. May 13, 1887. In re Application of Hynes. Opinion by Peckham, J., Ruger, C. J., and Earl, J., dissenting.
INSURANCE BROKER-CANCELLATION OF POLICYNOTICE.- (1) A broker procured an insurance policy for his principal, which provided for its cancellation at any time upon the return to the insured of a pro rata portion of the premium for the unexpired time of the policy. The premium was never paid unless the fact that credit was given to the broker for the premium could be considered payment. Held, that a notice of cancellation was effectual to destroy the polioy, though there was no return of a pro rata portion of the premium. (2) Notice to a broker of the cancellation of a policy of insurance which he had procured is notice to the insured, where the broker had been the agent of the insured for two years previous, with a good deal of discretion in procuring insurance; where the policy was carried upon his credit, and remained in his pogsession until canceled; and where for more tban three months after the cancellation of the policy, and the destruction of the property insured by fire, the principal seemed to recognize in all his acts that the notice of cancellation to the broker was binding upon him. May 10, 1887. Stone v. Franklin In8. Co. of Boston. Opinion by Earl, J., Ruger, C. J., disseuting.
JUDGMENT - LIEN – DECEDENT'S ESTATE TORS-POWER TO EMPLOY COUNSEL. -- During three years after a debtor's death in New York, under Code, $ 2749 et seq., bis creditors have a lien upon the real estate left by him, and it cannot be aliened by his heirs or devisees, so as to defeat their claims, but after the expiration of the three years, the debts cease to be a lien or charge on the real estate, but may be enforced against the heirs and devisees provided by stat. ute; and land aliened after that period is not subject to the payment of a judgment obtained against the representative of the deceased, especially where it is not shown that there was po personal estate out of which such judgment could be paid. An executor may bind himself personally, but has no power to biud the estate by an agreement with an attorney that he shall have one-half of the whole amount recovered by bim, in a suit to set aside transfers and conveyances of property made by the deceased before his death, and to recover certain claims and demands, and to create a lien on the estate therefor, or to assigu the claims to him. April 26, 1887. Platt v. Platt. Opiniou by Earl, J.
JUDGMENT BY CONFESSION AMENDMENT - DISCRETION OF COURT.- A motion by plaintiff to amend the statement of a confession of judgment is addressed to the discretion of the Supreme Court, and tbe Court of Appeals will not interefere with such discretion by inserting conditions other than those imposed by the Supreme Court for plaintiff's acceptance before granting the order. April 26, 1887. Symson v. Selheimer. Per Curium.
JURISDICTION NEW YORK SUPERIOR COURT will pass under a sale upon a joint execution against all EVIDENCE-INFERENCE OF WITNESS.- (1) The city of the partners issued upon a judgment recovered for a New York was sued, in the Superior Court thereof, joint debt. A mere general creditor of a firm, having for the amount of an award of property coudemned by no execution or attachment, has no lien whatever the park commissioners, credited to “unkuown upon the personal assets of tbe firm. But when a firm owners," by a claimant of such property. After inter- becomes insolvent, and thus it becoines necessary to pleader by another claimant, the city paid the award administer its affairs in insolvency or in a court of into court, and the case was dismissed as to it. Held, equity, then the rule is well settled that firm property that section 993, ch. 410, Laws 1882, N. Y., providing must be devoted to firm debts, and individual property that in such a case it shall be lawful for the city to pay to the payment of the individual debts of the memthe award into the Supreme Court, to be disposed of bers of the firm. It one member of a firm conveys to by it, is simply permissive to the city, and no ground a person, not a member of the firm, all his interest in for another party's objection to the jurisdiction of the the firm property, the purcbaser takes no part of the Superior Court. Tiduer v. Mayor, 57 N. Y. 344; Spears corpus of the firm property, but only such interest as F. Mayor, 87 id. 359. (2) Where the owner of a town remains after the equities between the partners have site contracted with the committee of an association been adjusted and the firm debts have been paid and formed to acquire such town-site, to make deeds to satisfied. So too it was decided by the case above such persons as the committee should name, evidence cited tbat it all the members of a firm should severally as to wbether all original grantees of such owner got convey to differeut persons each his interest in the firm their deeds because they were members of such property, the persons so purchasing would not take association, is inadmissible, as against a subsequent any of the corpus of the firm property, but only the grautee, to prove that his graptor had notice of the interest of each partner after the firm debts were paid terms of the contract; such evidence being merely a and the equities between the partuers adjusted. It is judgment or inference as to matters depending on the also settled that it would be a fraud upon firm credi. force of a written contract. May 13, 1887. Pollock v. tors for a member of a firm to take firm property and Morris. Opiniou by Finch, J.
apply it upon bis individual debts, or for the firm to MARRIAGE ANTENUPTIAL CONTRACT
take firın property and apply it upon the individual
- CONSTRUCTION — CONTINGENT PROVISION.- J. R., livingin New
debts of auy member of the firm. Ransom v. Van York, executed a trust deed to H. R., reciting that J.
Deventer, 41 Barb. 307; Wilson v. Robertson, 21 N. R. had entered into an antenuptial contract with P.
Y. 587. But one of two partners may transfer all of W., whereby it was agreed that J. R., on his marriage,
bis interest in the partnership property to his coshould settle and convey certain land to H. R., to the
partner, and the purchasing partner will be vested
with the absolute title to the corpus of all the partneruse, benefit, and behoof of P. W., in the following
(1) In the event of the death of J. R., sbip property, as if it had always belonged to him. the said P. W. shall have the use of the south
Stanton v. Westover, 101 N. Y. 205. And all the mem
bers of a firm may sell the partnership property, even half of the property during her natural life, and after her decease it shall revert to the heirs of the
if wholly insolvent, to a purchaser in good faith, and said J. R. (2) The use of the other halt of said prem
thus convey, free from the claim of firm creditors, a ises during the minority of H. R., Jr., and M. R.,
good title to the firm property. Instead of selling for children of J. R. by a former marriage; and when they
cash, they may transfer firm property to pay a firm
debt. And they may transfer the firm property to come of age, that they shall have the north half of the property conveyed to them; and in the event of the
pay a joint debt for which they are jointly liable outside decease of P. W. without issue during the life-time of
of the business of the firm, and the joint creditor will said J. R., all the property chall be trausferred back
obtain a good title to the firm property. Therefore, to J. R. (3) The said J. R. agrees to adopt C. W.,
while firm property will not pass uuder successive sales of P. W., and, in the event of baving no issue by P.
upon executions issued against the individual partW., that C. W. shall be joint and co-beir with H. R., ners, we can see no reason to doubt that such propJr., and M. R. The marriage was consummated, and
erts will pas under a sale upon a joint execution P. W. djed thereafter. Subsequently J. R. executed a against all the partners, issued upon a judginent re
corered for any joint debt whatever. (2) It is only mortgage on the land. Held, that the effect of ibe deed was to vest iu P. W. (or P. R.,) in case she survived
through the equity which one member of a firm has in J. R., an estate for her life in the south half of the
the firm property, or against his copartners, that firm
creditors can, on the principle of subrogation, enforce property, leaving the remainder in fee to J. R., and in the same contingency to vest in her an estate during
their claims against the firm property; and where the the minorities of H. R., Jr., and M. R., in the north hall
equities of all the members of the firm have been wiped of the premises, with remainder in fee to H. R., Jr.,
out by a sale of the assets of the firm, under execution and M. R., to vest in them on the deatb of J. R., in
against all the members of the firm, on a joint judg
meut for a debt, pot of the firm, but on wbich the the life-time of P. R., and to take effect in possession on their coming of age; that no estate was vested in
partners were all jointly liable as individuals, there H. R., as the deed was a mere conveyance to the use
is notbing to which the doctrine of subrogation can of the named beneticiaries, wbich uses would be execu
apply. And so in effect it was held in the cases of ted by the New York statute without any conveyance,
Menagh v. Whitwell and Stanton v. Westover, supra.
In 3 Kent Com. 65, it is said that “creditors have no and that those provisions were not to take effect except in the contingency of J. R. dying during the life-time
lien upon the partnersbip effects for their debts. Their of P. R. ; and that she having died before J. R., the
equity is the equity of the partners operating to the deed on her death ceased to operate, and the whole
payment of the partnership debts. In Kirby v. Schoon
maker, 3 Barb. Ch. 46, it was said by the chanellor: title remained in bim, so that the mortgage exeouted
“ The copartners however have certain equitable by him was valid. April 26, 1887. Helck v. Reinheimer. Opinion by Rapallo, J.
rights between themselves, arising out of the copart
pership, by which either can compel the other to bave PARTNERSHIP
FIRM AND INDIVIDUAL CREDITORS all the effects of the firm applied in the first place to - EXECUTION-SUBROGATION — CODE CIV. PRO., $ 1369. the payment of the debts due from them as copartners. - (1) Wbile property of an insolvent firm will not pass, And this, as is said in the books, gives the joint credias agaiust firm creditors, under successive sales upon tors a quasi equitable lien upon the property of the execution issued against the individual partners, it
firm, to be worked out through the medium of the
equity of the copartners as between themselves, and referee could not collect fees for days appointed for a with their assent, or at least with the assent of one of hearing, but on which uo hearing was had, and when, them.” In Case v. Beauregard, 99 U. S. 119, Mr. Jus- in advance of the days appointed, the parties agreed tice Strong said: " No doubt the effects of a partner- upon a postponement, and so notified the referee. (2) ship belong to it so long as it continues in existence, An oral agreement that the word “hearing" should and not to the individuals who compose it. The right be deemed to include “appointments of hearings" of each partner extends only to a share of what may canuot be admitted to vary such stipulation, in the remain after payment of the debts of the firm and the face of section 3296 of the New York Code, which resettlement of its accounts. Growing out of this right, quires any change in the compensation of a referee, as or rather included in it, is the right to bave the part- fixed by law, to be manifested in writing. May 13, nership property applied to the paymeut of the part- 1887. Mead v. Tuckerman. Per Curiam. pership debts in preference to those of any individual
REMOVAL OF CAUSE REPLEVIN BOND-CONpartner. This is an equity the partners have as between themselves; and in certain circumstances it in
SIDERATION.-- (1) A district court of the city of New
York has no authority to order an action of claim and ures to the benefit of the creditors of the firm. The
delivery to be transferred from that court into the latter are said to have a privilege or preference, some
court of common pleas, as Laws N. Y. 1857, ch. 344, times loosely denominated a lien, to have the debts due to them paid out of the assets of the firm in course
$ 2, subd. 3, providing for such transfers, has reference
to actions calling for relief to be obtained by money of liquidation, to the exclusion of the creditors of its several members. The equity however is a derivative
judgments only. (2) A boud given to obtain the re
moval of a suit from the District Court of the city of one. It is not held or enforceable in their own right.
New York to the Court of Common Pleas, the transfer It is practically a subrogation to the equity of the in
of which is not authorized by law, is not made under dividual partner, to be made effective only through him. Hence if he is not in a condition to enforce it,
any statutory authority, and is void. (3) Where for the creditors of the firm cannot be. But so long as the
the purpose of obtaining the removal of an action from equity of the partner remains in him, so long as he re
the District Court of the city of New York to the ('ourt tains an interest in the firm assets as a partner, a court
of Common Pleas, a bond is executed couditioned that of equity will allow the creditors of the firm to avail
the obligors will answer any judgment upon the rethemselves of his equity, and enforce through it the
moval of such action, such bond is, at common law, application of those assets primarily to payment of
void for want of consideration, if the latter court fails the debts due them, whenever the property comes
to obtain jurisdiction by reason that the action is such wwder its administration." In Fitzpatrick v. Flanna
as the District Court bas not authority to order the regan, 106 U. S. 648, Mr. Justice Matthews said: “The moval of. April 26, 1887. Miltnacht v. Kellerman. legal right of a partnership creditor to subject the
Opinion by Ruger, C. J. partnership property to the payment of his debts con
SALE-FRAUDULENT MISREPRESENTATIONS - STOCK sists simply in the right to reduce bis claim to judg
— RESCISSION.- A party who has been induced to buy ment, and to sell the goods of his debtors on execu
and pay for stock of a corporation by representations tion. His right to appropriate the partnership prop- of the seller which are untruthful and incorrect may, erty specifically to the payment of his debts, in equity,
upon a discovery of the facts, rescind the contract, in preference to the creditors of an individual partner,
and recover back the purchase-money. The finding is derived through the other partners, wbose original
of the referee, in this case, that plaintiff did not in right it is to have partnership assets applied to the
fact rescind his contract for the purchase of stock hy payment of partnership obligations. And this equity tendering back, without conditions, the stock received, of the creditor subsists as long as that of the partner
but on the contrary, used that stock, and its transfer through which it is derived remains; that is so long
to defendant, as a new consideration for a contract by as the partner himself retains an interest in the firm
which he obtained from defendant a bond of indemassets as a partner, a court of equity will allow the
uity, with tbe protection of a surety added, against creditors of the firm to avail themselves of his equity, the liabilities to which he had become exposed by his and enforce through it the application of those assets connection with the corporation as an officer thereof, primarily to payment of the debts due them, when
held sustained by the evidence, and dismissal of his ever the property comes under its administration.”
action for recovery of money paid for purchase of Therefore after the sale of the joint property upon a said stock affirmed. April 19, 1887. Bridge v. Penni. joint judgment, although the judgment was not re
тап. . Opinion by Finch, J. covered upon a debt against a separate firm of Tooker & Irwin, there were no rights, legal or equitable, left
SPECIFIC PERFORMANCE OPENING DECREE to either member of the firm in the property, and
DETERIORATION OF LAND.-In a suit to enforce specific therefore no equity in the firm property to be worked performance of a contract for the sale of land, before out under them by any of the firm creditors. (3) Code
an interlocutory judginent will be opened for the purN. Y., $ 1369, which provides that the sheriff shall pose of letting defendants claim interest on the pursatisfy an execution against property first “out of the chase-money, they must consent to allow the plaintiff persoval property of the judgment debtor,'' does not to prove, as a set-off, the damages he claims by reason require the sheriff to satisfy a joint execution against
of deteriorations caused by defendants' mismanagemembers of a firm out of the separate property in the
ment and neglect of the land. April 26, 1887. Bostassets of the firm of the individual partners. Under
wick v. Beach. Opinion by Rapallo, J. such an execution he may sell the right, title and in
SUBROGATION MORTGAGE-RELEASE.- Plaintiff's terest of all the partners, or any one of them, in the
assignor discharged certain prior mortgage liens on firm property, and where he sells the interest of all the
defendant's land, receiving in return, a mortgage from partners, such a sale carries the whole. Maroh 8, 1887.
defendant, which in the foreclosure proceedings was Saunders v. Reilly. Opinion by Earl, J.
adjudged void for usury. The mortgagee thereupon, REFEREE FEE - STIPULATION ORAL AGREE- assigned his rights to plaintiff, who sought to be sub! MENT. — (1) A matter in controversy was submitted to rogated to the liens discharged by his assigmor. Helit a referee, by a written stipulation wbich declared that tbat the claim was invalid, because based upon righ is the fees of the referee should be $20 per day “ for every acquired under the void mortgage. May 10, 1887. hearing." Held, that under such stipulation, the Perkins v. Hall. Opinion by Rapallo, J.