Constant et al. agt. The American Baptist Home Mission Society

and while the society stood, for the reasons herein before stated, chargeable in law with notice of Mr. Constant's rights even if the contracts were not made after the filing of the notices of the pendency of the present actions.

As to the form of the complaints I see no reason to change the views expressed by me on the trial. There is no statute, rule or practice requiring that the complaint for the foreclosure of a mortgage shall contain special allegations as to defendants who are or claim to be subsequent lienors, and there is no difference in method between the foreclosure of an unrecorded and that of a recorded mortgage, except that under rule 63, an unrecorded mortgage must be filed with the clerk before the execution of the sheriff's or referee's deed on a sale under the judgment of foreclosure. As both the plaintiffs and the society claim under mortgages executed by the Meehens, and the mortgages of the plaintiffs are first in date, the controversy does not present a question of paramount title, but only the question whether plaintiffs' mortgages are really what they purport to be, viz., first liens.

The plaintiffs are entitled to the usual judgment of foreclosure and sale, with costs, and an allowance in each of the three actions. Except as to matters peculiar to the actions when separately considered, the findings to be handed up for signature should be as they were proposed by the plaintiffs and corrected by me in action No. 1, with the addition of a further finding, which seems to have been overlooked, showing breach of the condition of the mortgage, viz., non-payment and the amount due.

Roberts agt. Warren,

SUPREME COURT.

ROBERT C. ROBERTS agt. EDGAR A. WARREN.

Costs-Several actions for same cause- Effect of one recovery-Code of Civil Procedure, section 3231.

In an action for an assault and battery committed by two defendants, on a motion by defendant for leave to serve supplemental answer setting up the recovery and satisfaction of a judgment against another party for the same cause of action;

Held, that the provisions of section 3231 of the Code of Civil Procedure (for the recovery of but one bill of costs when several actions are brought for the same cause) applies to this class of actions; and plaintiff is not entitled to costs, but only to taxable disbursements which have not been incurred and were not included in the other case.

Oneida Special Term, March, 1886.

MOTION by defendant for leave to serve supplemental answer setting up the recovery and satisfaction of a judgment against another party for the same cause of action. The action being for an assault and battery committed by the two defendants.

H. F. & J. Coupe, for motion

P. C. J. DeAngelis, for plaintiff

MERWIN, J.-The question seems to be as to what costs the defendant should pay as a condition to serving the supplementai answer. The claim of the defendant is that not more than $10 costs should be imposed. This is on the theory that section 3231 of the Code applies to this class of actions. It was so held in Quin agt. Bowe (4 Law B., 72; S C., 10 Daly, 505).

This provision, or one similar to it in the old Code, section 304, has been in force since 1849, but no direct adjudication is cited except the above. The question was not up in Mitchell

Donovan agt. Cornell.

agt. Allen (25 Hun, 543), nor decided in Abbott agt Johnstown, &c., H. R. R. Co. (24 Hun, 135).

I am inclined to the opinion that the contention of the defendant's counsel is correct and that section 3231 applies. The plaintiff, however, should have any taxable disbursements that he has incurred and that were not included in the other case, and should have leave to discontinue.

An order on this basis may be submitted.

NEW YORK COMMON PLEAS

DANIEL DONOVAN, plaintiff and respondent, agt. ROBERT G. CORNELL, defendant and appellant.

Arrest When relation of parties not a fiduciary one and an order of arrest cannot be sustained- Code of Civil Procedure, section 550, sub. 3.

Where a factor mingles the proceeds of sales indiscriminately with his own funds, and by usage pays by his check on Saturday for all merchandise delivered during the week, whether the same were then sold or unsold, the relation of the parties is not a fiduciary one within the meaning of subdivision 3 of section 550 of the Code, but an ordinary one of debtor and creditor, and an order of arrest issued in such a case cannot be upheld.

General Term, May, 1886.

Before LARREMORE, C. J.; DALY and VAN HOESEN, JJ.

THE action was brought against the defendant as commission merchant, to recover the proceeds of sales of sheep and lambs consigned to the defendant by the plaintiff. The case, upon a former appeal, is fully reported in 8 Civ. Pro. Rep., 284.

Horace Secor, for appellant.

J. C. Wolff, for respondent.

LARREMORE, C. J.-When this case was before the general

Donovan agt. Cornell.

term of this court before, it was held that the papers used on the application for the order of arrest did not disclose a cause of action for conversion. It was also held that the city court, at special and general term, erred in deciding to allow a jury to pass upon the question whether a fiduciary relation or one of mere debtor and creditor existed between the parties, and such question was remitted to the city court, to be decided by a judge thereof at special term (Daily Reg., Dec. 22, 1885). The special term of the city court, after hearing the application on the merits, has again refused to vacate the order of arrest; its order was affirmed by the general term of that tribunal, and from such order of affirmance this appeal is taken. The question how far we are bound by the allegations of the complaint as to the theory of the action having been determined on the former appeal, and it having been then decided that a cause of action for conversion is not therein set forth, and that the cause for arrest, if any, is extrinsic to and not identical with the cause of action, it seems clear that this order must be reversed.

Defendant alleges a general custom of the trade of which the plaintiff was aware, and in which he had acquiesced in all dealings between the parties for many years. The factor mingled the proceeds of sales, whenever made, indiscriminately with his own funds, and paid by his check on Saturday for all merchandise delivered during the week, whether the same was then sold or unsold. Plaintiff does not deny the existence of the usage or that his dealings were had in accordance with it. Indeed he expressly admits some of the more important facts averred. The relation of the parties was not therefore a fiduciary one within the meaning of subdivision 3 of section 550, but an ordinary one of debtor and creditor (Wallace agt. Castle, 14 Hun, 106; Duquid agt. Edwards, 50 Barb., 300; Grover & Baker Sewing M. Co. agt. Clinton, 5 Bissell, 324; Alliance Ins. Co. agt. Cleveland, 14 How. Pr., 408). According to the facts alleged in defendant's answer and affidavit, and which are not denied, we think the present case comes within the principle laid down by the court of appeals in Morris agt. Talcott (96

Rochester agt. The Mayor, Aldermen, &c., of New York et al.

N. Y., 100), and that the order appealed from should be reversed, with costs.

DALY and VAN HOESEN, JJ., concurred.

SUPREME COURT.

ROSWELL H. ROCHESTER, as receiver, &c., plaintiff, agt. THE MAYOR, ALDERMEN, &c., OF THE CITY OF NEW YORK, and others, defendants.

Reference-What issues are triable by the court-When reference should not be ordered-Code of Civil Procedure, sections 969, 968, 1013.

Actions to set aside fraudulent conveyances, transfers, releases and settlements should be tried by the court.

Under section 1013 whether to refer or refuse the reference is addressed to the discretion of the court. It is obviously the purpose and theory of the law that equity actions are to be tried by the court. Even in actions involving the examination of a long account, references are ordered, not as a matter of right or of favor to the parties, but for the convenience of the court, and the court cannot, for its own convenience in such cases, order a reference when there are difficult questions of law involved.

New York Chambers, January, 1886.

Oliver W. West, for plaintiff.

E. Henry Lacombe, counsel to the corporation; Thomas P. Wickes, of counsel.

POTTER, J.-This is a motion upon the part of plaintiff for the appointment of a referee to try the issues in this action.

The effect of the allegations of the complaint, and the relief sought, are essentially of an equitable character.

Those allegations are briefly but substantially these: that in the year 1865, under the authority contained in acts of the legislature for that purpose, the defendant. through certain of