amended by-laws, been paid in checks signed only by the treasurer, there was an implied authority in the treasurer to execute and deliver such checks, signed only by himself as treasurer, without any countersigning by the vice president. But it does not appear herein that the plaintiff, prior to purchasing or cashing the check in suit, had any knowledge of such previous transactions between the payee and the defendant, and it cannot be urged that the defendant, so far as the plaintiff is concerned, is estopped from denying the authority.

The only remaining question is whether there is any presumed authority in the treasurer of the corporation to sign checks, or other negotiable instruments, as incidental to the general powers of his office, which would relieve purchasers of such instruments from the duty of inquiring into the authority of the person executing and issuing the same. It is urged by the respondent that the treasurer was also the manager of the corporation; but it does not appear that this fact was ever brought to the knowledge of the plaintiff before purchasing the check in suit, so as to establish any principle of estoppel against the defendant.

[2] I do not think the office of treasurer carries with it any implied power to execute and deliver negotiable instruments in the name of a corporation, regardless of the provisions of the by-laws; and it appears to be the established rule that, as to negotiable instruments alleged to have been issued by a corporation, any holder or purchaser thereof is presumed to have notice that it must be taken subject to proof of authority on the part of the person by whom it purports to have been made, and that the plaintiff, in an action brought upon such an instrument, must affirmatively prove the authority of the officer signing the instrument. The Court of Appeals, in People's Bank v. St. Anthony, 109 N. Y. 512, 17 N. E. 408, held:

"Proof that a promissory note purporting to be made by a corporation was signed by its president and secretary does not show that it is the note of the corporation, without proof that it was made by its authority."

The plaintiff has failed to show either actual or implied authority in the treasurer to sign and deliver the check in suit, without the countersignature of the vice president, and has, therefore, failed to establish the allegation of his complaint that the defendant made, executed, and delivered the check in suit.

The learned trial court, therefore, erred in directing a verdict in favor of the plaintiff, and the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All

concur.

(75 Misc. Rep. 209.)

HUNT v. HUNT.

(Supreme Court, Special Term, Kings County. January, 1912.)

1. DIVORCE (§ 83*)—PROCEEDINGS-ABATEMENT ON DEATH OF PARTY. An action for absolute divorce is one of a personal nature, which abates with the death of the party bringing it.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 269-272; Dec. Dig. § 83.*]

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. DIVORCE (§ 151*)—JudgMENT-VACATING-POWER Oof Court.

In an action for absolute divorce, a motion made after plaintiff's death to vacate the judgment for plaintiff and for a new trial because of newly discovered evidence must be denied for want of power, and not in the exercise of discretion.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 509-513; Dec. Dig. 151.*]

Action by John W. Hunt against Bessie H. Hunt for absolute divorce. Application by defendant for an order reviving the action and vacating interlocutory and final judgments. Denied.

Philip Carpenter (Ernest P. Seelman and Frank P. Ufford, of counsel), for the motion.

Reeves & Todd (Alfred G. Reeves, F. M. Etheridge, and Ambrose G. Todd, of counsel), appearing specially for foreign executors.

STAPLETON, J. This is an application for an order reviving an action for absolute divorce and vacating the interlocutory and final judgments heretofore granted in the action. The plaintiff, who was successful in the action, is dead.

This motion, made after his death, comes before the court upon the return of an order to show cause entered in the matrimonial action, which provides for service thereof upon the executors of the last will and testament of the deceased plaintiff and the devisees and the legatees denominated in the will, all of whom are nonresidents of the state of New York and none of whom was personally served with any process within the state.

The grounds asserted as sufficient to impel the court, if it has the power, to revive the action and set aside the judgment, are that at the time the plaintiff sought the decree of the court dissolving the marriage between him and the defendant he was guilty of adultery under circumstances which would have entitled the defendant, if innocent, to a judgment of divorce, and that, although she did not defend the action against her, having appeared in the action and interposed an answer, she was not guilty of the adulteries alleged against her. The action was commenced by the service of the summons and complaint in the state of New York on December 30, 1909. The defendant answered, denying the charges contained in the complaint. The answer was served on January 29, 1910. On March 3, 1910, an order was entered appointing a referee to hear testimony and certify the same and the other proceedings upon the reference with his report to the court. The hearing took place on the 22d and 30th days of March, 1910. The report was confirmed and an interlocutory judgment was entered on April 18, 1910. Final judgment divorcing the parties and dissolving the marriage by reason of the defendant's adultery was entered on July 26, 1910. On the 22d day of October, 1910, a motion was made by the defendant to vacate the final judgment and for a new trial on the ground of newly discovered evidence; the newly discovered evidence being the adultery of the plaintiff. The motion was made returnable on November 1, 1910. The argument of the motion was adjourned several times, at the request of the plaintiff,

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and was set by stipulation for November 25, 1910. On November 22, 1910, the plaintiff obtained an order to show cause why the argument of said motion should not be enjoined. This order was made returnable on November 28th, and contained an ad interim stay. The defendant served answering affidavits on the latter motion on December 1, 1910, and argument of that motion was set by stipulation for December 13, 1910. The proceedings between the parties thus stood on December 11, 1910, when the plaintiff died.

[1] In Matter of Crandall, 196 N. Y. 127, 130, 89 N. E. 578, 579 (134 Am. St. Rep. 830, 17 Ann. Cas. 874), the Court of Appeals said:

"We also suppose that it will be conceded that an action for divorce is preeminently an action of a personal nature which in the absence of statutory provisions abates with the death of the party bringing it."

In Bell v. Bell, 181 U. S. 176, 179, 21 Sup. Ct. 551, 553 (45 L. Ed. 804), the Supreme Court of the United States, speaking of a matrimonial action, said:

"The death of the husband since this case was argued of itself terminates the marriage relation, and, if nothing more had been involved in the judgment below, would have abated the writ of error, because the whole subject of litigation would be at an end, and no power can dissolve a marriage which has already been dissolved by act of God. Stanhope v. Stanhope (1886) L. R. 11 Prob. Div. 103, 111."

In McCurley v. McCurley, 60 Md. 189, 45 Am. Rep. 717, the court said:

"It is well settled that the death of either party to a divorce suit before decree, it being a personal action, abates the divorce proceedings, and this effect must extend to whatever is identified with those proceedings."

Bryon v. Bryon, 134 App. Div. 320, 119 N. Y. Supp. 41, Pettit v. Pettit, 105 App. Div. 312, 93 N. Y. Supp. 1001, Watson v. Watson, 1 Hun, 267, and Groh v. Groh, 35 Misc. Rep. 354, 71 N. Y. Supp. 985, restate the principle that an action for a divorce is abated by death and by death passes beyond the limits of revival. All these authorities illustrate the personal character of the action, and that character subjects it to the necessary and inevitable incident of abatement. In Ackerman v. Ackerman, 200 N. Y. 73, 76, 93 N. E. 192, 194, the court, speaking of a matrimonial action, said:

"This is a statutory action. 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 conferred by the statute."

All statutory provisions concerning matrimonial actions are contained in chapter 15 and section 1229 of the Code of Civil Procedure, and those provisions will be searched in vain for any authority enjoining the abatement of an action for divorce.

[2] If it be assumed that the final judgment was fraudulent, there is no action pending in which it could be vacated.

There can be no valid order except in an action or special proceeding. The judgment is conclusive upon the parties until vacatur. It cannot be vacated without notice, and notice cannot be given unless there be a party or parties to the action upon whom it can be served.

The persons upon whom the defendant attempted to make substituted service pursuant to the order to show cause were not parties to the action. They have no legal relation to the subject-matter of the action. The court has not acquired jurisdiction of their persons, and has no authority to grant the relief sought. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Wetmore v. Karrick, 205 Ú. S. 141, 27 Sup. Ct. 434, 51 L. Ed. 745; Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129. It is needless to determine whether the plaintiff, since deceased, was guilty of such fraud upon the tribunal or upon the defendant in the action as would vitiate the judgment, as I conclude that, even if he were, the court has no power to grant relief in this the original action.

It is irrelevant to consider the authorities cited with relation to the powers of a court of equity, with the proper parties before it, to relieve from a judgment, even of this character, tainted by fraud.

Motion to vacate judgment is denied for want of power, and not in the exercise of discretion.

Motion denied.

In re BOEHM.

(Supreme Court, Appellate Division, First Department. May 3, 1912.) 1. ATTORNEY AND CLIENT (§ 44*)-NEGLECT OF ATTORNEY-PROSECUTING AC

TIONS.

In the fall of 1906, respondent, an attorney, was retained to sue on a promissory note, receiving $25 at the time for disbursements, under an agreement to accept one-fourth of the amount recovered as compensation. After the answer was filed in June, 1907, respondent did nothing further in prosecuting the action until November 12, 1910, when the case was noticed for trial and placed on the calendar. The client made several inquiries as to the progress of the case, in answer to which, on November 21, 1908, respondent wrote that he was surprised at his client's inquiries, and that he had every reason to believe the case would be reached during the coming month or during the first week in April at the latest, and that it took some time for a case to be reached for trial in the Supreme Court. Such an action could have been put upon the "short cause" calendar and disposed of at once, and causes on the contract calendar are usually reached within six months. Respondent's only excuse for the delay was that he was appointed Assistant Attorney General in September, 1907, and held the office until February, 1908. Held, that respondent was guilty of such gross neglect and carelessness in prosecuting the action as to deserve the censure of the court.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 55, 56, 62; Dec. Dig. § 44.*]

2. ATTORNEY AND CLIENT (§ 44*)—IMPROPER CONDUCT OF ATTORNEY-FAILURE TO PROSECUTE ACTION.

The conduct of an attorney in assuring his client that the case was on the calendar, and was being diligently prosecuted, when it had not even been placed on the calendar or noticed for trial, was highly improper.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 55, 56, 62; Dec. Dig. § 44.*]

In the matter of disciplining George N. Boehm, attorney. Decision as stated.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Argued before INGRAHAM, P. J., and MCLAUGHLIN, SCOTT, CLARKE, and DOWLING, JJ.

John H. Iselin, of New York City, for petitioner.

George Gordon Battle and John C. Myers, both of New York City, for respondent.

PER CURIAM. The respondent was admitted to practice in February, 1899, and has continued since that time to practice in the city of New York. In the fall of 1906 he was retained by one Lottie Thompson to bring an action on a promissory note, and at that time he received the sum of $25 for disbursements, and made an agreement with his client that he should have for his compensation one-quarter of the amount recovered. He prepared a complaint which was verified by his client on May 28, 1907. The defendant in that action interposed an answer, and the case was at issue in June, 1907. The respondent did nothing further with the action, neither noticing it for trial nor placing it on the calendar until the 12th of November, 1910, over three years after the action was at issue. Mrs. Thompson, the complainant in this proceeding, made several inquiries of the respondent as to the progress of the case, and, in response thereto, the respondent stated that the case was on the calendar for trial. On November 21, 1908, the respondent wrote his client a letter, in which he said that he was surprised at the contents of her letter to him. That letter is not produced, so we are not informed as to what occasioned his surprise. He continues:

"As a business woman I thought you appreciated that it takes some time for a case to be reached for trial in the Supreme Court. I have every reason to believe that your case will be reached during the coming month or at the latest during the first week in April. I want to try it as much as you. want it tried, for on my success depends my fee."

Notwithstanding these repeated requests for information as to the cause of the delay, the respondent persistently stated that the action was on the calendar, wrote to his client that it takes some time for a case to be reached for trial in the Supreme Court, and then stated he had every reason to believe that it would be reached during the month of March or at the latest during the first week of April. A very slight acquaintance with the rules regulating the calendar practice in this department would have disclosed that an action on a promissory note could be put upon the "short cause" calendar and disposed of at once if at any time the respondent had made such a motion, and the time in which a cause on the contract calendar is generally reached does not much exceed six months. Yet, notwithstanding these repeated inquiries, he allowed the time from October, 1907, until November 12, 1910, over three years, to elapse without making any inquiry of the clerk as to the condition of the case or taking any means to ascertain why it had not been reached, but assuring his client that the case was on the calendar, that it would soon be reached, and that the reason for the delay was the time it took to reach a case when on the calendar. Yet the respondent says he was familiar with the rules in relation to calendar practice in