Claflin et al. agt. Baere. The date in 1881 is named for the payment of the first installment of the $453.02 in arrear, and has no connection with paragraph above quoted. I am unable to discover any postponement of the rents in question. The mortgage merely secures whatever balance may remain still due at the end of the term. The logical sequence of any other contention would enable the relator to remain in possession, without payment, until January 15, 1881, then to begin paying at the rate of twenty dollars per month. Such a variation of the written lease could not be made, except by clear and unambiguous words. The writ must be dismissed. COURT OF APPEALS. HORACE B. CLAFLIN et al. agt. JULIUS BAERE and LOUIS BAERE. Appeal-order setting aside attachment not appealable. An order setting aside and vacating an attachment is not reviewable in the court of appeals. Decided March 2, 1880. THIS was an appeal from order of general term affirming an order of special term, setting aside and vacating a warrant of attachment. The opinion of BARRETT, J., as well as the affidavits in the case are reported in 57 Howard, page 78. A. Blumensteil, for defendants and respondents. 1. The order is not appealable, the motion to vacate the attachment was founded upon the insufficiency of the papers on which it was granted. The court at special term and general term decided that the attachment should be set aside. This is not a question of jurisdiction, and the order is not appealable (Allen agt. Meyer, 71 N. Y., 1; Wallace agt. Castle, 68 N. Y., 373; Liddle agt. Paton, 67 N. Y., 393). Fire Department of West Troy agt. Ogden. Even if the affidavits had been sufficient to authorize the granting of an attachment, the exercise of that power is purely discretionary, The language of section 635 of the Code of Civil Procedure is that an attachment" may be granted," etc. It does not appear but that the general term considered the whole case, including the affidavit of Thomas D. Adams, interposed on the motion, and the answering affidavit of the defendant. The order of the special term recites the reading of all the affidavits (See Godfrey agt. Godfrey, 75 N. Y., 434). It then became a mere matter of discretion whether, upon all the facts, the court was authorized to set aside the attachment, and the case comes clearly within the decision of Allen agt. Meyer (supra). Samuel Hand, for plaintiffs, respondent. DANFORTH, J.-The appeal should be dismissed, the order appealed from not being one that is reviewable in this court (59 N. Y., 313; 68 id., 370; 71 id., 594). Appeal dismissed. All concur. SUPREME COURT. THE FIRE DEPARTMENT OF WEST TROY agt. G. PARISH OGDEN and EZRA R. VAIL. Foreign insurance companies — agents of — penalty for not filing bond - Laws of 1879, chapter 153. Where the defendants had issued several policies of insurance upon property located in West Troy, and had paid the two dollars upon the hundred on premiums received, but had not given the bond required by the statute (Laws of 1876, chapter 359, which is amendatory of chapter 465 of Laws of 1875), in an action to recover the penalty for not having given the bond as required by the statute: Held, that, by the act of the legislature (Laws of 1879, chapter 153) which again amends the acts of 1875 and 1876, the right to such penal Fire Department of West Troy agt. Ogden. ties, when the premium has been paid, is taken away, and the statute necessarily includes and covers the case of a suit already brought, as well as that of one to be brought. Where a penalty has been imposed by law, the legislature has power to repeal it entirely, or to limit the cases in which it is recoverable, even though an action has been brought for its recovery. Albany Circuit, May, 1879. MOTION for a new trial on judge's minutes. A. J. Colvin and T. McMannus, for plaintiff. Smith, Fursman & Cowen, opposed. WESTBROOK, J.- By chapter 359 of the Laws of 1876, which is amendatory of chapter 465 of the Laws of 1875, every agent of a fire insurance company, not incorporated. under the laws of this state, must pay for the benefit of the fire department of the village or city in which any insurance shall be effected upon property located therein, except in the cities of New York and Albany, two dollars upon every hundred dollars premiums received for such insurance. The act further requires a bond to be given by every agent, conditioned for a faithful annual account of premiums received. A penalty of $200 is given for every policy issued by an agent who has not given the bond. The defendants in the present action had issued several policies of insurance upon property located in West Troy, and had paid the two dollars upon the hundred on premiums received, but had not given the bond required by the statute. It was held upon the trial that the actual payment of the premiums did not bar the action (Fire Department of Whitesboro agt. Thompson, 16 Hun, 474). A verdict in favor of the defendants was, however, ordered, because, by chapter 153 of Laws of 1879, which again amends the acts of 1875 and 1876 aforesaid, it is provided: "But no action shall be maintained, or recovery be had in any Fire Department of West Troy agt. Ogden. court of this state, for or on account of any such offense heretofore happening; nor shall any court have power or authority to render judgment for or on account of any such offense heretofore happening, when such agent shall have paid to the party entitled to the same the premium required to be paid by section one of this act, as amended by section one of chapter three hundred and fifty-nine of the Laws of eighteen hundred and seventy-nine." A motion is now made for a new trial upon the judge's minutes, and it is claimed that as the penalties had been. incurred when the present action was begun, the recent statute should be so construed as not to affect an action already commenced, and that as the right to the penalties had become vested, such right could not be taken away by the legislature. It is conceded that statutes must have a prospective operation only, unless the intent that they shall have a retrospective effect also is manifested by clear words. Cases quite numerous can be found, and the learned counsel for the plaintiff have cited several, in which courts have given statutes a prospective operation. Each statute, however, must be construed by its own words. It is clear that the act of 1879 must operate retrospectively, for it declares that, when the premiums have been paid, though no bond has been given, that no court has " power or authority to render judgment for or on account of any such offense heretofore happening." This language is as sweeping and broad as can be made. It necessarily includes and covers the case of a suit already brought, as well as that of one to be brought, and in any and every case the court is deprived of jurisdiction to render judgment for any "offense heretofore happening" when the premium has been paid. No other construction of the words, as it seems to me, is possible. Actions pending are not exempted from the operation of the statute, and such cases must, therefore, be affected by the plain language used. There was no such vested right in the plaintiff that the act Hauenstein agt. Kull. must be held invalid for that reason. A penalty had been imposed by law, and the legislature has power to repeal it entirely, or to limit the cases in which it was recoverable, as it in fact has done, even though an action has been brought for its recovery (Butler agt. Palmer, 1 Hill, 324; see opinion of judge Cowen on pages 329, 330, &c.; Smith agt. Banker, 3 Howard's Pr., 142; Church agt. Rhodes, 6 Howard's Pr. 281). The motion for a new trial must be denied, with ten dollars costs. SUPREME COURT. LOUIS C. HAUENSTEIN, as general guardian of LOUISA KULL, agt. BARBARA KULL, JOHN P. HOLLER and HENRY WOLFF. Pleading-demurrer to complaint-action by general guardian on an administratrix's bond- Parties- Presumptions. An action may be maintained by a general guardian in his own name to recover a debt due to his ward. Where the decree of a surrogate directed an administratrix to pay to the plaintiff, as general guardian of their infants, a certain sum "for each of said infants, as the distributive shares," of each of them: Held, upon demurrer to the complaint, in an action brought by the general guardian of one of the infants for her separate share, that the other infants were not necessary parties to the suit, and that a separate suit might be brought for each share. When a public officer performs a specific act in pursuance of a statute, it must be presumed to have been done for the purposes of the act, and in pleading it is sufficient to aver the performance of the act. Thus, where a bond given by an administratrix, was ordered by the surrogate to be assigned to the general guardian, under the statute, the presumption is, that it was directed to be assigned for the purpose of I eing prosecuted. Special Term, February, 1880. DEMURRER to complaint. |