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notice of the seizure to the debtors. That since the sheriff had not The items objected to were one of been notified of the stipulation $15 as additional compensation between plaintiffs and defendants' under $ 3307 of the Code Civ. Pro., debtors, he was at liberty under for the trouble and expenses of $ 655 of the Code to maintain an the sheriff in taking possession of action for the recovery of the debt and preserving the property; one seized under the attachment, 23 of $5 for making an inventory of Barb., 123 ; 32 Hun, 138; and as the property attached, and one for incidental to that right he was encosts and expenses of the sheriff titled to be allowed the costs and in an action brought by him to re-expenses incurred by him in the duce the debt levied upon to his proceedings taken therefor. possession. The last item was Ordered accordingly. objected to upon the ground that Opinion by Daniels, J.; Davis, a stipulation was entered into be- P. J., and Brady, J., concur. tween the plaintiffs and the debtors by which the successful maintenance of such an action by the

SURETIES. sheriff before the recovery of a

N. Y. SUPREME COURT. GENERAL judgment in this action was pre

TERM. FIRST DEPT. vented. The sheriff, however, had not been notified of such stipula

Max Hoffman et al. v. Isaac tion or been requested not to in- Steinau et al. stitute the action which he did.

Decided Oct. 31, 1884.
Henry D. Hotchkiss, for applts.
Charles F. MacLean, for respt.

A surety on an undertaking given by the Held, That since the sheriff in

plaintiff in a replevin action may be per

mitted, where that can be justly or equitno manner obtained the possession

ably done, to protect himself by opening a or custody of the property seized judgment obtained against the plaintiff by he was entitled to no additional default and prosecuting the action in the

latter's name. compensation for his trouble and

Whether the surety will be able to prosecute expense in taking possession of

the action successfully or not is not a matand preserving the property under ter to be considered upon an application by sub. 2 of $ 3307 of the Code. 12

him to be allowed to proceed with its prose

cution. Hun, 115.

That the allowance to the sheriff This action was brought by the of a sum in gross for the making plaintiffs to replevy certain per of an inventory has not been pro- sonal property. They subsequentvided for by said section, and that ly failed to prosecute it and judgthe five dollars allowed therefor ment was taken against them, by should be stricken out with lib. default, decreeing the return of erty to the sheriff to charge ac the property. After the return of cording to the language of the execution against them unsatisfied section the fees allowed for mak. the defendants commenced an acing the inventory.

tion against K., one of the sureties

in the undertaking given by Order reversed and application plaintiff, the other surety having granted. left the State. K. thereupon Opinion by Daniels, J.; Davis, moved to be allowed to open the P. J., and Brady, J., concur. . judgment and prosecute this action, and from the order denying such motion he appealed.

RECEIVERS, Blumenstiel & Hirsch, for applt. N. Y. SUPREME COURT. GENERAL George H. Yeaman, for respts.

TERM. FIRST DEPT. Held, That sureties are always

Benjamin Moore, trustee, v. regarded with great indulgence in Francis Higgins, receiver. everything depending upon the discretion of a court of justice,

Decided Oct. 8, 1884. 1 Den., 268, 270, and within this A receiver of the estate of a deceased person, principle they may be permitted, who is invested with all the real and perwhere that can be justly or equit sonal property of said estate and who enters

into the possession of certain real property ably done, to protect themselves

under a lease executed to decedent, becomes against liability, where their prin

liable as receiver for the rent of said propcipal shall fail to do so, by pro erty and must pay the same out of any ceeding in, or resisting the litiga funds of the estate which may be in his

hands whether derived from the real or tion for which they became bound

personal property. in his name, 35 Barb., 208; 14

The fact that such receiver has been dig. Johns, 501; and that is all that

charged by an order obtained without was sought to be accomplished by notice to the plaintiff in a suit against him the application made in behalf of pending at the time of such discharge is

no defence to such suit. the appellant.

That whether evidence could be Motion for a new trial upon exobtained which would establish the ceptions ordered to be heard at right of the plaintiffs in the ac the first instance at the General tion to the recovery of the prop- Term. erty, the possession of which was This was an action against deobtained by them at its commence- fendant as receiver of the estate ment, was not a matter to be deter- of John H. McCann, deceased, to mined upon this application. That recover rent reserved in a lease of all that was necessary to consider certain real property executed to was whether the case, as it was said John H. McCann. By the presented in behalf of the surety, terms of the order appointing the would justify an order permitting defendant such receiver he was inhim to proceed in the name of the vested with all the real and perplaintiffs to a trial of the cause sonal property belonging to the upon its merits, and that that estate.

and that that estate. The defendant admitted point seemed to be maintained in in his answer that he had sublet his favor by the authorities above the premises included in the lease, cited.

and it also appeared that he and

his sub-tenant had been removed the settlement of his accounts and fronı the possession of the premises his discharge. by summary proceedings institu Held, That without such notice ted for that purpose, the record in and the opportunity to present his which was put in evidence upon claim for adjustment, the order the trial.

discharging the defendant would Everetl P. Wheeler, for pltff. be of no effect as to the plaintiff. Samuel Jones, for deft.

That the defendant could not, Held, That the fact was estab- without notice to the plaintiff, oblished that the defendant took tain an order for his discharge possession of the property as re- and then resist the right to recover ceiver under the lease executed to rent by the fact that such an order John H. McCann, and that ren- had been made. 33 Hun, 164. dered him liable as receiver for the Verdict for defendant set aside rent accruing for the use and occu- and new trial ordered. pation of the premises until his Opinion by Daniels, J.; Davis, removal therefrom by the summary P. J., and Brady, J., concur. proceedings. 93 N. Y., 609, 624; 9 Paige, 641, 644.

The defendant testified that the PROMISSORY NOTE. rents collected by him as receiver were not sufficient to enable him N.Y. SUPREME COURT. GENERAL to pay the rent claimed by the

TERM. FIRST DEPT. plaintiff, but his testimony did not

Richard M. Raven et al., applts., disclose the fact that he could not

v. Eda Rubino et al., respts. pay it out of the personal property committed to his custody by the

Decided Oct. 8, 1884. order under which he

was ap- | The defendant, Eda Rubino, made her note pointed.

for $5,000 chargeable upon her separate Held, That as long as he had estate, and delivered the same to her hus. become liable for the rent he

band, Eugene Rubino, solely for his ac

commodation and without any other concould not escape liability by the

sideration. Her husband endorsed said circumstance that the rent col note and delivered the same to plaintiffs, lected from the real estate was not who were stock brokers and who agreed to sufficient to enable him to pay if

hold the same as margin or security, and

to purchase, sell and carry stocks, &c., for he had any funds in his hands,

said Eugene Rubino until said security or whether derived from the real or margin should be exhausted, and not to personal property, which might dispose of same until after they had debe applied to its payment. 93 N.

manded increased security or that said

Rubino should take the stocks held for him Y., 609.

their market price. Subsequently The defendant also testified that, plaintiffs sold the stocks, &c., held by pending this suit, he had been dis them for Rubino without waiting for charged as receiver, but it was not

the security thus given to be exhausted, or

giving him notice to increase it, and closed made to appear that the plaintiff

his account, and brought this suit upon the had notice of the application for note to collect a balance alleged to be due

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them. Held, That there was a failure of gin or security.” The referee furconsideration of the note and the action ther found that subsequently the could not be maintained.

plaintiffs refused to give Eugene Appeal from judgment entered Rubino the credit agreed upon, upon the report of a referee. and that they sold and disposed

This was an action on a promis- of the stocks, &c., to his credit sory note. The trial of the issues without his direction or consent, was referred and the referee found and without notice or demand for the following facts upon conflict other margin, and without waiting ing evidence :

till the exhaustion of the margin, That in January, 1881, the de- and closed his account with them, fendant, Eda Rubino, made her and brought this suit upon the note for $5,000, chargeable upon note to recover a balance claimed her separate estate, and delivered to be due them upon such closing the same to her husband, the de- of the account.

of the account. The referee upon fendant Eugene Rubino, solely these facts gave judgment for defor his accommodation and with fendants. out receiving any other considera A. Prentice, for applts. tion; that Eugene Rubino endorsed

W. C. Beecher, for respts. the note and delivered it to plain Held, That the evidence did not tiffs under and pursuant to an preponderate in either direction agreement “

" that the said note sufficiently to justify the court was deposited with and received upon appeal in disturbing the by the plaintiffs as margin or secu- findings of fact made by the refrity in consideration of which the eree, who had the advantage of said Eugene Rubino was to have seeing and hearing the witnesses. and receive a credit of $5,000 with 94 N. Y., 623. and from the plaintiffs ; that the That the facts found by the refplaintiffs would thereupon, for the eree showed a failure of the conusual commissions, upon the order sideration of the note, and that it of the defendant Eugene Rubino, could not be enforced by an action purchase and sell stocks, &c., and based upon the instrument or its carry the same so long as he should endorsement. 60 N. Y., 146; 10 desire. unless said security repre. Hun, 56 ; 63 How., 81. sented by said note should be ex Opinion by Davis, P. J.; hausted ; and that plaintiffs would Brady and Daniels, JJ., connot then dispose of the same until after they had demanded of the said defendant increased security FIRE INSURANCE. or that he take the stocks and pay HUSBAND AND WIFE. the market price thereof; and that

N. Y. SUPREME COURT. GENERAL plaintiffs would give him due no

TERM. FIFTH DEPT. tice of the time and place of the disposition thereof and due op John Kelly, respt., v. The Agriportunity to make good his mar cultural Ins. Co., applt.

cur.

Decided Oct., 1884.

the fact was respecting the inortWhen the application stated that the premises gage.

54 N. Y., 193; 55 id., 222. to be insured were incumbered $300, and That the charge was erroneous. the proof of loss stated that at the date of The credibility of plaintiff's testithe fire the premises were covered by a

mony that his wife had transferred mortgage for $600, the insured is not estopped from showing that the mortgage the property to him was a question was originally for $600, and that before his for the jury. 86 N. Y., 548. The application he had paid $300.

policy insured the plaintiff alone Personal property owned by the wife at her

against loss by fire. He was in marriage, which has been used in common in the household like the husband's, is not

sured as owner only, and was en. covered by a policy upon the husband's titled to only such damages as property.

were suffered by injury to or loss Appeal from judgment on ver

of his property. 17 Barb., 274; 1 dict at Circuit, and from order de Bosw., 518; 2 Cranch, 419; 4 Mass., nying new trial.

647; 22 Hun, 396; 61 N. Y., 579; Action on fire insurance policy 24 id., 381. covering a dwelling-honse and its Judgment and order reversed contents. The application, which and new trial granted, with costs by the terms of the policy is part to abide event, unless plaintiff of it, stated that the premises stipulates to reduce the judgment were incumbered $300. Plaintiff's $233.75, as of the time of the rendiproofs of loss stated at the date tion of verdict. Then judgment of the fire there was a mortgage and order affirmed without costs of on the premises for $600. Plaintiff appeal to either party. testified on the trial that the mort Opinion by Bradley, J.; Smith,

concur; gage was originally for $600, and P. J., and Barker, J., that before he made his application Haight, J., not sitting. for insurance he had paid $300, and that was the mortgage referred to PROMISSORY NOTE. in the proofs of loss. The court

N. Y. SUPREME COURT. GENERAL charged "that the personal prop

TERM. FIFTH DEPT. erty of the wife which after marriage has been mingled with that of The Bank of Hamilton v. Wil. her husband and not kept separate liam Mudgeti. and distinct, with the intention on

Decided Oct., 1884. their part to have it used together and not keep it separate, then the question whether a note was paid and

extinguished, or merely extended, by the it becomes the property of the

giving of other and successive notes, the husband."

preceding one being given up in each inA. H. Sawyer, for applt.

stance, Held, Under the particular facts of

the case, to depend upon the intention of Ansley & Davie, for respt.

the parties, and to be a question for the

jury. Held, That plaintiff was not estopped by the statement in the Motion by defendant for new proofs of loss from showing what trial on exceptions taken at Cir

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