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and 95 New York State Reporter.

which the plaintiff was entitled as of course to enter judgment on a writ of scire facias. The plaintiff and the bail entered into a collusive settlement to prevent that from being done, so as to cheat the plaintiff's attorney of his costs. He was allowed to enter judg ment (which was a mere formality) to frustrate the fraud. In Chap man v. Haw it was held that the plaintiff may without consulting his attorney compromise with the defendant and take upon himself the payment of his attorney's costs "if there be no fraudulent conspiracy to cheat the attorney of his costs"; and the motion to vacate the judgment which the attorney had entered in spite of the settlement was granted. In Cole v. Bennett the parties tried to defraud the attorney of his costs, and the motion to vacate the judgment entered by the attorney on default was denied. In Marr v. Smith the parties made a bona fide settlement of the judgment, and on motion the defendant was discharged from custody under it against the opposition of the plaintiff's attorney who sought to hold the judgment for his costs. And in McDonald v. Napier, 14 Ga. 89, also cited in the Coughlin Case, it was held that "if the parties without notice bona fide settle or compromise the debt and costs, the attorney cannot afterwards proceed against the defendant for his costs." These decisions seem scarcely to support decisions such as that in Rasquin v. Stage Co., 12 Abb. Prac. 324, that the attorney may prosecute the action to judgment in every case, where it has been settled to defraud him; much less the decisions which strangely seem to consider that to be the rule regardless of fraud. This latter never was the law. But at all events such decisions are no longer applicable since the adoption of our statute giving the attorney a lien on the cause of action itself, for the attorney no longer needs a judgment in the action to give him a lien. It was only in order that he might get a lien that he was formerly allowed to enter judg

ment.

In respect of the objection of the defendant that it is entitled to a jury trial to fix the compensation plaintiff's attorney is entitled to, it is enough to say that the enforcement of his lien is an equitable proceeding and there is no right to a jury in equity except by statute. The motion for reargument is denied with $10 costs.

(29 Misc. Rep. 658.)

WAH KEE v. YOUNG.

(Supreme Court, Special Term, Erie County. November 23, 1899.) MASTER AND SERVANT-ACTION FOR WAGES-STATUTE-REMEDY.

Buffalo city charter, as amended by Laws 1898, c. 101, provides that, in an action by an unskilled laborer for wages, if he has a family dependent on him for support, on judgment for any sum not exceeding $25 the clerk must, on application, issue execution against the body of defendant, if it appears from the complaint or by affirmative proof that demand was made, that the family live in the state, and that the labor was performed in the city of Buffalo. Plaintiff sued under this statute, but failed to plead such facts, and on trial disclaimed right to recover under the statute, but asked judgment for work and labor at common law. Held, that since the

statute referred to the remedy, and did not create a new cause of action, plaintiff was entitled to recover a judgment enforceable as an ordinary judgment at law.

Appeal from municipal court of Buffalo.

Action by Wah Kee against Charley Young. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Hammond & Hammond, for appellant.

Chas. S. Hatch (Edward T. Durand, of counsel), for respondent.

TITUS, J. This is an appeal from the municipal court of Buffalo. The plaintiff commenced his action against the defendant for labor and services performed for the defendant in washing and ironing in the defendant's laundry, and demands judgment for the sum of $5.80. On the argument before me, I was requested, in deciding this case, to make a written memorandum of the grounds of my decision, for the reason that, in actions brought in the municipal court to recover for wages, under the statute, for unskilled labor or domestic service, that court has been accustomed to holding that, if the plaintiff does not show himself entitled to its benefits, he must be nonsuited, and judgment in favor of the defendant granted.

By the city charter, as amended by chapter 101 of the Laws of 1898, relating to the municipal court, it is provided:

*

** *

*

"In an action brought in this court by domestic servant to recover for services performed by her, or by a common or unskilled laborer having a family dependent upon him for support, for wages due him, if the plaintiff recovers a judgment for a sum not exceeding twenty-five dollars, exclusive of costs, the clerk must, upon the application of the plaintiff and the order of the judge of said court, issue an execution against the person of the defendant. * In an action to recover a sum of money for wages earned by a domestic servant, or a common or unskilled laborer, as aforesaid, ** * it must appear upon the face of the complaint, or affirmative proof must be made, that the plaintiff has made a personal, just and reasonable demand for the amount claimed from the defendant, prior to the commencement of the action, and in a case for common or unskilled labor that such family dependent upon the plaintiff for support resides within the state of New York, and that such labor was performed within the city of Buffalo."

In a judgment obtained under this statute, none of the defendant's property is exempt from execution, and the defendant is liable to arrest and imprisonment for failure to pay such a judgment. The complaint in this case is an ordinary complaint, in an action at law to recover for labor and services, but the pleader evidently intended to bring the plaintiff within the provisions of the statute; for he alleged that the plaintiff has a family dependent upon him for sup port. There is no allegation that a demand has been made upon the defendant, or that the services were performed within the city of Buffalo, or that the family of the plaintiff resided within said city; so, upon the face of the complaint, the plaintiff was not entitled to a judgment which would authorize the issuing of a body execution. On the trial before the municipal court, the plaintiff disclaimed to recover a judgment under the statute, but claimed he was entitled to a judgment for work, labor, and services at common law, having

and 95 New York State Reporter.

shown a performance of the services for the defendant and his agreement to pay for the same. The court refused to grant the plaintiff's request for a judgment, on the ground that when an action was once commenced, or attempted to be commenced, under this statute, no judgment could be granted him unless the plaintiff in all things brought himself within its provisions. The court below is mistaken about the law. The statute does not give a party a new cause of action; that existed before. It does, however, give a new remedy in enforcing a judgment by execution. It affects the remedy, and not the right or cause of action. The plaintiff may bring his action under the statute, and, if he fails to show what the statute requires, he may, nevertheless, have a judgment for the amount of his claim; but it can only be enforced as an ordinary judgment at law. The cases cited by the counsel for the defendant, which hold that an action for tort cannot be converted into an action on contract, have no application, because tort is the gravamen of the action. Here no new cause of action is given. A remedy is simply provided for the enforcement of a judgment by body execution, when certain statutory facts are made to appear by the evidence. See Moffatt v. Fulton, 132 N. Y. 507, 30 N. E. 992.

I think, therefore, the judgment must be reversed, with costs.

VERNON et al. v. GILBERT et al.

(Supreme Court, Appellate Term. December 28, 1899.)

LANDLORD AND TENANT-LEASES TERMINATION.

Since a memorandum for a verbal lease, providing that it should be, from February 1st, a "monthly lease" of half of a loft, was not a lease for years. but a special agreement for a tenancy by the month, and therefore for a definite term, 2 Rev. St. (9th Ed.) p. 1818, § 1, declaring that agreements for occupation of tenements in New York City which do not particularly specify the duration of such occupation shall be deemed valid until the 1st day of May next after possession under such agreement shall commence, does not apply, and the landlord was entitled to terminate the lease at the end of any monthly period.

Appeal from municipal court, borough of Manhattan, Second district.

Dispossess proceedings by Harold Vernon and another, trustees, etc., against Louis Gilbert and another. From a judgment of the Manhattan municipal court in favor of defendants, plaintiffs appeal. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

Douglass & Minton, for appellants.

Elisha W. McGuire, for respondents.

MacLEAN, J. In this proceeding to dispossess, the landlords, by verified petition, alleged the making of an agreement on or about January 12, 1899, with tenant Gilbert, for the letting of certain premises to him, as a monthly lessee, and that he entered into occupa

tion under said agreement, and introduced in evidence the following writing:

"From February 1st, monthly lease of 1⁄2 top loft, with elevator service as at present, heat and same power as at present, at $800 per annum, payable monthly in advance on first of each month, or $66.66 on first of each month, giving to owner or tenant right to pass through to front of loft from elevator, and giving owner privilege to rent enough space for desk room to Lowenson. Rent for last half of January, $10.

"January 12, 1899.

"This is a memorandum of verbal lease.

"H. V.

Estate of T. Vernon,
L. Gilbert."

"[Stamp.] Subsequently, and on or about September 21, 1899, the landlords notified the tenant of their election to terminate the tenancy at the end of the following month of October. The tenant, admitting by not denying the agreement set forth in the petition, by verified answer alleged an oral lease of the premises from May 1, 1899, to April 30, 1900, at $800, payable monthly in advance, but offered no evidence in its support. The trial justice seemingly regarded the letting as a yearly one; and under the doctrine stated in Douglass v. Seiferd, 18 Misc. Rep. 188, 191, 41 N. Y. Supp. 289, there might be force in such conclusion, had the parties in their agreement not used the expression "monthly lease," which words may not be disregarded or construed as needless. The entire writing evinces a special agreement for tenancy by the month, and so for a term definite, to which the statute (2 Rev. St. [9th Ed.] p. 1818, § 1) has no application. The judgment must therefore be reversed.

Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.

LEIBMAN et al. v. ABRAMSON.

LEIBMAN v. SAME.

(Supreme Court, Appellate Term. December 28, 1899.)

TROVER AND CONVERSION-EVIDENCE.

In an action. against a marshal to recover damages for the seizure and conversion of plaintiff's goods under a writ directed against another, testimony of plaintiff as to whose possession the goods were in when seized is competent.

MacLean, J., dissenting.

Appeal from municipal court, borough of Manhattan, Fifth district.

Two actions,-one by Tobias Leibman and another against Samuel I. Abramson, as one of the marshals of the city of New York, and the other by Hirsch Leibman against same defendant. Judgment for defendant in both cases, and plaintiffs appeal. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and MacLEAN, JJ.

Abraham H. Sarasohn, for appellants.
Emanuel Hertz, for respondent.

61 N.Y.S.-57

and 95 New York State Reporter.

FREEDMAN, P. J. These actions were brought by the plaintiffs to recover damages for the alleged conversion of personal property. They are both founded upon the same state of facts, and were tried as one action, and the defendant had a judgment in each case. The facts and circumstances out of which the alleged cause of action arose are substantially as follows: The plaintiffs and one Louis Treibitsh were at one time co-partners and engaged in the tailoring business at No. 125 East Broadway, in this city. Subsequently, and on or about May 1, 1899, this partnership was dissolved by the withdrawal of Treibitsh therefrom, and the business was continued by these plaintiffs in the same place. On August 8, 1899, one Max Pine instituted a replevin action against Treibitsh for the recovery of the possession of several sewing machines claimed to have been purchased by him of Treibitsh. A requisition was thereupon issued to the defendant herein, as one of the marshals of the city of New York, and by virtue of such requisition the marshal entered the place of business occupied by the plaintiffs, and seized and took into his possession several machines claimed to be owned by them, and to have been in their possession. This action was thereupon brought against him, and the question litigated upon the trial was, in whose possession was the property at the time of the seizure thereof by the defendant? That such an action lies, at the instance of the owner or of the person entitled to the possession of property, against the marshal or sheriff who has taken the same, by virtue of replevin process, from the owner or person entitled to such possession, and other than the defendant named in the writ, has been decided in many cases. Deutsch v. Reilly, 8 Daly, 132; Bullis v. Montgomery, 50 N. Y. 352; Otis v. Williams, 70 N. Y. 208; Stimpson v. Reynolds, 14 Barb. 506. It therefore became necessary for the plaintiffs to show that they were in the actual possession of the property at the time the marshal seized the same. Numerous questions similar in character and import to the following were asked of the plaintiffs, objected to by the defendant's counsel, and excluded by the court, to wit: "When the marshal came and took the machines, in whose possession were the machines?" These questions. called for facts such as were material and necessary, and were addressed to witnesses who had knowledge of, and were competent to testify as to, those facts, and were proper and competent questions. De Wolf v. Williams, 69 N. Y. 621; Davis v. Peck, 54 Barb. 425; Casper v. O'Brien, 36 N. Y. Super. Ct. 574. And the refusal of the trial judge to permit them to be answered was error for which a new trial should be granted. None of the other points raised by the appellants need be considered.

Judgment reversed and new trial granted, with costs to the ap pellant to abide the event, in each case.

LEVENTRITT, J., concurs.

MacLEAN, J. (dissenting). It was incumbent upon the plaintiffs herein to prove "actual possession or a right to the immediate possession" of the articles which were taken by the marshal under the

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