LIST OF DECISIONS-NO OPINIONS.
SUPREME COURT, APPELLATE TERM, MARCH, 1902.
Before FREEDMAN, P. J., GIEGERICH and GREENBAUM, JJ.
Robert Friedman, Respondent, v. Peter J.
Herter et al., Appellants.-- Appeal from a
judgment of the City Court of the city of
New York. entered upon an order of the
General Term of said court, affirming a
judgment entered upon the report of a referee. J. F. Coffin, for Appellants; A. S. Shapiro, for Respondent. Judgment affirmed, with costs. No opinion.
CITY COURT OF NEW YORK, GENERAL TERM, JANUARY, 1902.
Before FITZSIMONS, Ch. J., CONLAN and O'Dwyer, JJ.
Meyer Elinsky, Respondent, v. The Stuyvesant Insurance Company of the City of New York Appellant.- Appeal from a judg ment enter-d on the verdict of a Ju, and from an order denying Defendant's motion
for a new trial. Maxwell Hall Elliott, for Appellant; Alexander Rosenthal, for Respondent. Judgment affirmed with costs. No opinion.
CITY COURT OF NEW YORK, GENERAL TERM, FEBRUARY, 1902.
Before CONLAN and O'DWYER, JJ.
Oscar Schmidt, Appellant, v. Eugene Schulz, Charles H. Klinge aud Anna B. Klinge Respondents. Appeal from an order of, the Special Term, requiring the Plaintiff to give security for costs as a non-resident
Plaintiff. Powe.i & Cady, for Appellant: Olney & Comstock, for Respondents. Judgment reversed on the argument. No opinion.
Surrogate's Court — Legatee's right to compel an accounting — Code C. P., §§ 2727, 2728.-A legatee under a will may compel an executor of it to account but there can be no distribution of the fund until all the parties in interest have been cited and given an opportunity to be heard. It is only where it appears from the executor's account, or otherwise, that there is a surplus distributable to creditors or persons interested, that they are to be cited, and in such case it is discretionary with the surrogate to cite them. If the executor apprehends that there may be a necessity for two trials of the same issues, contested in regard to his account, he may apply voluntarily to account and have the latter proceeding consolidated with the compulsory one. Matter of Rainforth, 660.
See Executors and Administrators; Guardians.
1. Equity-When a wife may reach, for arrears of alimony and counsel fee in her action for a separation, a surplus of income of a trust fund created for her husband's benefit.-Where a husband goes beyond the jurisdiction after his wife, without resources and having children, has obtained against him an order, for alimony during the pendency of her action for a separation from him as well as for a counsel fee, and he has no property within the jurisdiction which. can be taken on execution or by sequestration, she may as his creditor maintain an equitable action against him and his father's executors to reach a surplus of a beneficial income given him by his father's will and apply it to arrears of the alimony and counsel fee, to the end that she may have support during the prosecution of and may prosecute her action for a separation. McGlynn v. McGlynn, 12.
2. Misjoinder of causes of —The agent and his undisclosed principal may be sued in the same action but there can be only one satisfaction. There is no misjoinder of causes of action where shippers of goods sue, in the same action, agents (of carriers) as well as their undisclosed but subsequently discovered principals, for delivering the goods in a damaged condition contrary to the terms of the bills of lading as, although there can be but a single satisfaction for the breach, the shippers may proceed against both agent and principal until they have obtained satisfaction from one of them. American Trading Co. v. Wilson Sons & Co., 76.
3. Practice. Conduct of a representative action when committed to a plaintiff added after suit begun.-A person who has brought a representative action has a right to continue, discontinue, or compromise it until a person similarly situated has become a party plaintiff but thereafter he can do nothing in derogation of the rights of the latter. Accordingly where the original plaintiff unreasonably delayed trying the action the court committed its conduct to a party, added after suit begun, upon his giving a bond to the original plaintiff to secure payment to him of a ratable share of the entire expense of the action, whenever that should be determined. Manning v. Mercantile Trust Co., 215. See Attorneys; Executors and Administrators; Judgment; Negotiable Instruments; Partnership; Tort.
1. Judicial settlement - When not delayed at the instance of an alleged
creditor. Where executors have recovered judgment against a woman, now
objecting to their accounts as an alleged creditor, and the judgment has been
paid by her and affirmed by the Appellate Division and no appeal has been
taken by her to the Court of Appeals, the surrogate will not, although the time
to take the latter appeal has not expired, postpone the judicial settlement of
the executors and permit her to review in his court the validity of the judg
ment against her. The surrogate has no power to adjudicate that she is
entitled to the money she paid or to direct the executors to pay it back to her,
and the matter is not within Code C. P., § 2745. Matter of Truslow, 189.
2. Review in Special Sessions and Police Courts · Code Crim. Pro., § 515.-
The provisions of section 515, in part IV of the Code of Criminal Procedure,
abolishing a review by writ of certiorari of a judgment or order in a criminal
proceeding and confining a review to an appeal, apply now to part V of said
Code relative to proceedings in courts of Special Sessions and Police Courts.
People ex rel. Edwards v. Warden, 639.
3. Surrogate's Court - Decree not opened to correct errors of substance
Code C. P., § 2481, subd. 6.-A surrogate cannot open or modify his decree
in order to correct errors of substance alleged against it, as the remedy of the
party aggrieved is by appeal and not by motion. Accordingly, such a motion
was denied where its purpose was to review a decision of the surrogate refusing
to charge an accounting executor with certain interest, allowing a payment
made him for preparation of his account, giving him commissions and making
an allowance to his counsel. Matter of Walrath, 696.
Order of — Right of action on the undertaking where the order has been
vacated Measure of damages· Payments by the principal obligor.- Under
an undertaking affording indemnity jointly and severally to several defendants
upon an order of arrest granted in a civil action for an injury to property, one of
them who has been imprisoned under the order may upon its being vacated as
to him sue at once upon the undertaking without joining the other indemnitees
either as plaintiffs or defendants. No demand is necessary before commencing
the action. The measure of damages is indemnity against necessary time lost
and costs and expenses incurred by the party arrested in relieving himself from
the order, but he can recover nothing for injury to his person. Any payments
made by the principal in the undertaking for motion costs on the vacation of
the order enure to the benefit of the sureties and lessen pro tanto their lia-
bility. Krause v. Rutherford, 382.
See Criminal Law; Warrant.
See Executors and Administrators; Guaranty; Legacy; Will.
ASSIGNMENT FOR BENEFIT OF CREDITORS.
See New York Stock Exchange.
Injunction dependent on the subject of the action Right of members of
an unincorporated association to restrain other members from violating the
agreement of organization — Demurrers.—The Supreme Court has jurisdiction,
under Code C. P., § 603, of the subject of an action brought by certain base ball
clubs, members of a voluntary unincorporated association known as the National
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League and formed under an agreement executed by the plaintiffs and certain
other base ball clubs defendant, to prevent the latter from violating the agree
ment, to avoid an alleged illegal election by them of still another defendant as
president-secretary-treasurer of the League, to restrain him from acting as such
as well as from taking possession of the funds of the League and to prevent
its alleged legal president from surrendering them to him, to the injury of the
plaintiffs. A demurrer to jurisdiction of the subject of the action must be over-
ruled, no matter how numerous the defendants may be, if the complaint states
against the demurrant a cause of action of which the court has jurisdiction.
An incorporated ball club, foreign or domestic, has as
right to sue, and unless it appears, on the face of the complaint, that it has
a corporation a
not such right a demurrer will not lie upon that ground. An unincorporated
association is not a partnership, and therefore the rule that one partner cannot
sue another to prevent him from exercising his rights concerning firm property
or affairs does not apply to an action like the present. The action is properly
brought by the plaintiffs alone where they allege that the defendant base ball
clubs are aiding and abetting the alleged illegally elected president-secretary-
treasurer in his acts, to their injury, and where the plaintiffs seek to restrain
such aiding and abetting. The National League is not a necessary party de-
fendant, no relief being asked against it. The action is not one to determine
the title to an office and therefore is not within Code C. P., §§ 1940, 1984, de-
claring that such an action shall be brought by the People, nor are those sec-
tions applicable to an unincorporated association. Boston Base Ball Assn.
v. Brooklyn Base Ball Club, 521.
Necessity for serving the summons within thirty days -
An attachment must be vacated where service of the summons, made without
Code C. P., § 638.-
the State of New York within thirty days after the granting of the attach-
ment, has been set aside by an order and an appeal has been taken therefrom
and no stay has been granted and no other service of the summons has been
made or begun within said thirty days. Martin v. Smith, 425.
1. Complaint upon his negligence in regard to a loan on mortgage-Effect
of a bond existing - Damages - Tender to the client.-A complaint, alleging
that the defendant, an attorney at law, negligently advised and permitted the
plaintiff, as general guardian, to loan money on a mortgage on real estate
without disclosing the existence of a first mortgage thereon, that the latter
mortgage was foreclosed and the plaintiff's mortgage thereby cut off, and that
by reason of the defendant's negligence the plaintiff has been damaged in the
amount of the loan and interest, is not demurrable as failing to state a cause
of action but may be upheld as sufficiently alleging the retainer of the defend-
ant and his negligence, either in omitting to discover or disclose to the plaintiff
the existence of the first mortgage or in failing to advise him that he could
not invest on second mortgage security. The contention of the defendant that,
there being a bond, the primary security, the plaintiff cannot sue presently
because he does not allege that the obligors of the bond are irresponsible, is
not tenable as he may sue at once for all damages he is likely to sustain.
He need not, in his complaint, offer to assign the bond and mortgage to the
defendant as a tender of an assignment of them, made upon the trial, would
probably be sufficient. Gardner v. Wood, 93.
2. Client when entitled to summary relief against — Reference when or-
dered. Where the employment of an attorney is so connected with his pro-
fessional character as to afford a presumption that it formed the ground of
his employment the court will interfere in a summary way to compel him to
execute the trust reposed in him, but where he is employed in a matter wholly
unconnected with his professional character the court will remit the party,
who alleges that he has been damaged, to his action. Where the petitioner
alleged that the attorney had offered his services as attorney and it appeared
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