may be appended is a transcript, and that can only be done by some intelligent statement of the fact that the instrument is a transcript of the judgment docket kept in the office of the clerk signing the attestation.

That the certificate handed to the Clerk in this instance contained no such statement nor anything equivalent to it, and was therefore materially and radically defective and the appellant was right in refusing to file it and docket the judgment on its authority in his office.

Order reversed and motion for mandamus denied.

Opinions by Daniels and Brady, JJ.; Davis, P. J., concurred.

The sole question submitted in this case was whether plaintiff who, as sheriff of the City and County of New York, had levied upon, under a warrant of attachment, a debt owing by defendant to the defendant named in said warrant of attachment by delivering a copy of such warrant to it and receiving from it a certificate of indebtedness, was entitled to require this defendant to pay over to him the amount of such indebtedness, and whether he could maintain an action for that purpose.

W. Bourke Cockran, for plff. Briesen & Steele, for deft. Held, That § 648 of the Code of Civ. Pro. declares that a levy under an attachment is a levy upon and a seizure and attachment of the debt represented by it, and when, therefore, an attachment debtor is the creditor of another a

TERM. FIRST DEPT.

Alexander V. Davidson, Sheriff, v. The Chatham National Bank of New York.

Decided March 7, 1884.

A sheriff who attaches a debt under a warrant of attachment by delivering a copy of such warrant to the debtor and taking a certificate of indebtedness from him is entitled to have the amount of such debt paid over to him during the pendency of the action in which the warrant was issued, and if the debtor refuses to do so the sheriff may maintain an action against him to recover such debt. In such an action it is not necessary to allege in the complaint that it has been brought by the direction of the court or judge.

such person in the manner indicated in $649 of the Code of Civil Pro. results in the levy upon and seizure of the demand, and when that is accomplished, under § 655, it is declared that the sheriff must, subject to the directions of the court or judge, collect and receive such debt, and the same section provides that he shall maintain any action or special proceeding. in his own name or in the name of the defendant, which is necessary for that purpose.

That $675 of the Code of Civ. Pro. recognizes by implication the right of the sheriff to collect a demand for the reason that it invests

That, therefore, the sheriff had a right to maintain an action to collect a debt levied upon by him under a warrant of attachment during the pendency of the action in which such warrant was issued, and in such an action the complaint need not contain an allegation that the action has been brought by the direction of the court or judge. 32 Barb., 601; 33 id., 123.

Judgment ordered for plaintiff. Opinion by Brady, J., Davis, P. J.,and Daniels, J., concur.

SHERIFF'S FEES. ATTACH

MENT.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

Bolton Hall et al., applts., v. The United States Reflector Co., respt.

Decided Feb. 1, 1884.

If an order contains a direction made without

authority of law an appeal from such order is not the only remedy of the party aggrieved; he may move to modify the order by striking out the unauthorized direction. A judge who, under § 3307, sub. 2, Code Civil Pro., adjusts the sheriff's fees and expenses on an attachment has no authority to add to the adjustment a direction for the payment of the amount.

By sub. 2 of § 3307, Code Civ. Pro., the judge who issued the warrant of attachment is vested with the authority to adjust the

sheriff's fees and expenses thereunder and no power to do so is conferred upon the court, and, therefore, an order made by the court making such adjustment is inopera

tive.

Appeal from an order denying a motion to modify orders made by

ing the sheriff's fees and expenses under an attachment by striking out of such orders directions contained therein that plaintiffs should pay the amount allowed to the sheriff.

It was claimed by defendant that the motion was properly denied because the only remedy of plaintiffs was by appeal from the orders adjusting the sheriff's fees, &c.

Wm. B. Hornblower, for applts. Edward P. Wilder, for respt. Malcolm Graham, for sheriff. Held, That if the directions. complained of were made without the authority of law the course pursued for the correction of the orders by striking out said directions was a proper one, and the motion should have been granted. 78 N. Y., 306, 308; 18 How., 314; 25 Hun, 376. That by sub. 2 of the Code of Civ. Pro., the sheriff's fees, compensation and expenses in executing a warrant of attachment are to be adjusted by the judge issuing the warrant, but he is given no authority either to inquire or adjudicate as to the liability of the parties for the payment of the amount adjusted, and this direction therefore was made without legal authority. That, moreover, as the statute (supra) invested the judge himself with the authority, and conferred no power upon the court to make the adjustment, the orders were inoperative for that reason. N. Y., 278; 12 W. Dig., 99.

77

Order reversed and order entered striking out of the preceding

of.

SECURITY FOR COSTS.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

plaint dismissed, and the excep-. tions ordered to be heard by the General Term in the first instance. George A. Black, for applt. J. A. Shoudy, for respt.

Held, That the application was warranted, Code Civ. Pro., §§ 3268,

Decided Feb. 1, 1884.

A motion for additional security for costs given by a non-resident plaintiff is not too late after the action has been tried, the complaint dismissed, and the exceptions ordered to be heard at the General Term in the first instance, and if, on such a motion, the security is shown to be inadequate, it

will be ordered to be increased.

Appeal from an order denying a motion for additional security for costs.

Plaintiff was a non-resident and in the early part of the action gave a bond in the sum of $500 as security for costs. The action was twice tried, the complaint being dismissed on each trial, and two appeals were taken to the General Term, the result of each of which was a reversal of the judgments pronounced at the trials. On the third trial the complaint was again dismissed, but judgment was suspended and the exceptions ordered to be heard in the first instance at the General Term. At this stage of the case defendant's costs and allowances amounted to the sum of $1,250, and a motion was made on its behalf that plaintiff be required to give additional security for costs. This motion was denied Vol. 18.-No. 22.

for additional security at any time, which means before judgment, and further that upon satisfactory proof that the sum specified in the undertaking is insufficient the Court must require additional indemnity; that it was quite ap– parent that the security already given was totally inadequate for the indemnity to which defendant was entitled, and the motion should have been granted.

Order reversed, and plaintiff required to give an additional bond in $500.

Opinion by Brady, J.; Davis, P. J., concurs.

RAILROADS. EMPLOYEES.

N. Y. COURT OF APPEALS. Vick, admix., respt., v. The N. Y. C. & H. R. RR. Co., applt.

Decided March 11, 1884.

Where traveling on the cars to and from his work constitutes a part of the contract of service of a railroad employee the company is not responsible for an injury received by him while so traveling.

Plaintiff's intestate, who lived in Rochester, was employed by defendant as foreman of its tinshop at Buffalo, defendant agreeing to pass him to and from his work. Held, That his conveyance to and from his work

was part of the contract of employment and that during such conveyance he was not a passenger but an employee of the company.

Reversing S. C., 17 W. Dig., 316.

This action was brought to recover damages for the alleged negligent killing of V., defendant's intestate. The evidence showed that he had been in defendant's employ as foreman of its tinshop in Rochester prior to December, 1876, when defendant removed its shops to Buffalo; that before their removal V. had left defendant's employ. Many of the employees in the tinshop at Rochester continued in the employ of defendant after it had removed its shops, but still resided at Rochester. Defendant arranged with them to take them to Buffalo on Monday morning and bring them home Saturday evening of each week. Sometimes they were carried in a baggage car and latterly in a passenger car called a shop car, in which other persons who paid fares were permitted to ride. No fare was required of the men thus employed, but by agreement a deduction was made from their wages of so much per hour as they were paid when at work for the time they were on the train, their wages beginning when they reached the shop at Buffalo and ending when they left it. In January, 1877, V. applied for his former position and was employed by defendant. V. asked if he could go with the rest of the men and was told he would be passed with them in the defendant's shop car. On these terms he commenced work as foreman in defendant's tinshop in Buffalo.

The only pass was one given to the master mechanic, under which all the men living at Rochester who worked in the shops at Buffalo traveled. There was no evidence

that V. ever saw the pass or knew its contents. He was paid for his work in accordance with the arrangement stated. V. was killed by an accident while in defendant's shop car on his way to his work at Buffalo.

Edward Harris, for applt.

William S. Oliver, for respt. Held, That the contract for the employment of V., and for transporting him to and from Buffalo was one and the same contract; that he was in the car at the time of the injury under the terms of the contract for his services and not as a passenger but as an employee, and plaintiff was not entitled to recov

er.

The conveyance of V. to and from his work was part of the contract of service under which he was employed. 10 Cush., 228; 14 Gray, 466; L. R., 1 C. P., 289.

Ross v. N. Y. C. & H. R. RR. Co., 74 N. Y., 617; Russell v. H. R. RR. Co., 17 id., 134; O'Donnell v. RR. Co., 59 Pa., 239, distinguished.

Where one is in the emyloy of a RR. Co., and traveling on the cars constitutes a part and portion of the contract of service, if while so traveling he is injured, he must be regarded as a servant of the company and it is not responsible for the injury.

Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial granted, costs to abide event.