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remedy was by a motion for a bill | The court has power in its discretion to refuse of particulars, and, as

to the

to postpone the trial of an action on the

ground of the absence of counsel who were second, that plaintiff need only

to aid plaintiff's attorneys. state the effect of the policy, as he It is not irregular for the court to adjourn the had done. Defendant appealed hearing of an unfinished cause and call up from so much of the order as deni

another case and proceed to dispose of it.

The terms to be imposed upon granting a ed these portions of its motion.

favor are within the discretion of the court C. B. Alexander, for applt.

when the application is made and the ex

ercise of such discretion will not be interW. W. Hewitt, for respt.

fered with unless there was an abuse of the Held, That the motion was cor

discretion or it was mistakenly exercised. rectly disposed of at Special Term Appeal from order of Special except in one single particular; Term, opening a default taken at that the allegation that defen- a Special Term dismissing the dant “by its officers and agents” complaint with costs. made divers false representations The default was taken as follows: was bad pleading; that the alle- The Special Term at the opening gation should have been that of the court adjourned a prior undefendant made the representa- finished cause to 2 P. M., and tions, under the maxim qui facit called up this case. Plaintiff's per alium, facit per se, and that, attorney asked for a postponement if plaintiff chose to persist in the on the sole ground of the absence form of pleading adopted by him, of counsel who had promised to he should declare specifically attend and aid in the trial. The the particular officers and agents court heard the application and by whom he claimed such repre. defendant's opposition and consentations were made ; that a mo- cluded to refuse to postpone and tion for a bill of particulars was to order the complaint dismissed not an efficient remedy.

with costs to each defendant who Order modified by requiring had separately appeared. This is plaintiff to make the complaint claimed to be irregular. more definite and certain in this Jas. Stanley, for applt. particular, and, as so modified, Wm. James and George B. affirmed.

Warner, for respts. Opinion by Davis, P. J.; Brady, Held, That the court did not J., concurred.

abuse its discretion when it refused

to postpone. It may have believed PRACTICE.

plaintiff's attorneys adequate for

the trial of the action. That the N. Y. SUPREME COURT. GENERAL circumstance that the court had

TERM. FOURTH DEPT. adjourned the prior unfinished Mary Flannery, applt., v. Henry tion of this cause and it was not

cause did not deprive it of jurisdicJames et al., respts.

irregular or beyond the power of Decided Oct., 1883.

the court to call up this cause at 10 A. M., and proceed with the Opinion by Hardin, J.; Smith, disposition thereof, and the court P. J., and Barker, J., concur. had power to refuse to postpone on account of the absence of counsel to aid plaintiff's attorney and

RECEIVERS. CONTEMPT. to dismiss the case when plaintiff N. Y. SUPREME COURT. GENERAL failed to produce witnesses and en

TERM. FOURTH DEPT. ter upon the trial of the issues of

Dwight B. Dewey et al., V. J. fact.

Burton Finn. The court at Special Term has a

Decided Oct., 1883. general supervision of the calendar and any action taken by it as A receiver in supplementary proceedings is to the order of its business, not

not justified by the order of appointment

in taking forcible possession of property in objected to at the time, cannot be

the possession of a third person who claims said to deprive it of power and to own it. jurisdiction to proceed with a The third person, not a party to the proceedcause when counsel, as in this, on

ing and without notice thereof, whose both sides appear.

property is thus seized and carried away is

entitled to the usual remedies given by The order appealed from opened common law and is not punishable for the default on condition that plan- contempt where he sues the receiver for tiff pay each of the defendants the trespass without leave of court. $30 costs and $10 costs of opposing Appeal by one C. from order immotion and disbursements as posing a fine of $10 upon him for taxed, and that she and her hus. contempt of court. band vacate the premises described One H. was appointed receiver in the complaint.

of defendant in supplementary Held, That the terms to be im- proceedings commenced in Februposed on granting a favor are with ary, 1883. Prior to the service of in the judicial discretion of the the first order defendant sold cercourt when the application is made, tain property to C., who took posand this court does not interfere sion of it. After his appointment, with the exercise of such discre. H. with others went to C.'s premi. tion unless it is of the opinion ses and

ses and took possession of the that the discretion has been abused property. or mistakenly exercised. 4 Lans, Thereupon C. commenced an 476; 85 N. Y., 479. We are satis. action against H. individually, and fied that the court did not abuse those who assisted him in taking its discretion nor impose terms the property, and recovered judgunreasonable. Plaintiff can com- ment.. For bringing such action ply and thus secure the opportun- C. was adjudged in contempt. ity to have her case heard on the Thos. F. Kearns, for applt. merits.

Jas. A. Ward, for respt.

Held, Error ; that assuming that to be divided between respondents C. was in possession of the property and the disbursements of each. and was the owner thereof prior to

Order affirmed, with $10 costs Held, Erı

the service of the order first issued Order reversed, with costs, &c. in the supplementary proceedings Opinion by Hardin, J.; Barker the receiver had no title to it, as he and Dwight, JJ., concur. only took such title as the judgment debtor had at the time of the service of the order. Hence the

PARTITION. receiver was not as such entitled

N. Y. SUPREME COURT. GENERAL to take the possession and title of

TERM. FIRST DEPT. the property from C.; nor did the order appointing him in terms ex

Charles E. Fleming et al., respts., tend to that property.

When v. Elbert L. Burnham et al., applts. property is in the possession of a

Decided March 7, 1884. third party and claimed to be owned by him the same cannot

In an action for the partition of real property

where one of the parties is the undisputed be taken by a receiver, nor can the

owner of two thirds of the property to be third party be ordered to deliver

divided, while the title to the remaining the same to the receiver. When one-third is in dispute among the other parsuch property is forcibly taken ties, the Court, in the interlocutory judg.

ment, will order the sale of the property in by a receiver, the order appoin

one parcel, and give directions that oneting him cannot justify the tak

third of the proceeds shall be brought into ing. See Willard Eq. Jur., 335 ; court to await the result of the controversy 8 Paige, 390; 40 N. Y., 383; 3 over its ownership, although if there bad Hun, 367.

been no such controversy the property

would have been actually partitioned. Under the former practice the receiver might call upon the mas- Appeal from order of Special ter to decide what property legally Term overruling exceptions to the or equitably belonged to the de- referee's report and confirming the fendant, and to which the receiver same. was entitled under the order of the This action was brought for the court, 8 Paige, 388; but the court partition of certain real property. did not protect the rights of a re- Plaintiff was the undisputed owner ceiver, by a summary proceeding of two-thirds of the property, against a person not a party to while the remaining one-third was the suit, who seized upon property in dispute between the defendants. which was neverin possession of the Plaintiff desired a sale of the premreceiver or his agents. 9 Paige, 372. ises in a single parcel and a divis

The third party whose property ion of the proceeds, while the deis seized and carried away from his fendant Elbert L. Burnham insistpossession is entitled to the usual ed that an actual partition should remedies given by common law, be made. The referee appointed and for asserting such right, where for that purpose reported that as he has not been made a party to atual partition could not be made, prior proceeding or had notice and his report was confirmed and an thereof, he ought not to be pun interlocutory decree was entered ished as for a contempt.

decreeing the sale of the property

in a single parcel. The defendant representative, but is authorized, acting in Elbert L. Burnham appealed from

good faith, to maintain the existing situathe order confirming the referee's

tion until a representative of the estate

shall be appointed. report. G. W. Lord, for applt.

This action was brought to reA. Thain, for respt.

cover from defendant a balance Leroy B. Crane, guardian ad due plaintiffs, a firm of stocklitem for infant defendants.

brokers, for loss on certain stock Held, That the order could not transactions conducted by them be sustained but for one fact that for R. her testator. The loss in appeared in the case, which was question arose out of the followthe controversy over the question ing transactions. Plaintiffs in of title which was involved and was June, July and August, 1880, to be tried in the action; that, sold short by direction of R. under such circumstances, it was 600 shares of D., L. & W. stock, impracticable to make equal par- and 400 shares of N. J. Central tition among the various claimants stock. Plaintiffs were to procure of this one-third, because the Court the stocks so sold by borrowing could not at this stage of the case them, or in some other way, to determine their respective rights ; deliver to the purchasers. Said that it would be unjust to plaintiff stocks so sold were not purchased to withhold the relief to which he or the transaction closed at the was clearly entitled until those date of R.'s death, Oct. 29, 1880. litigants as to rights in which he Letters testamentary were issued was not interested shall have reach- to defendant Dec. 29, 1880. ed a determination of their contro- During the time intervening betversy; that for that reason an

ween the

death of R. and the equal partition would be imprac- qualification of his executrix, ticable, inasmuch as a complete plaintiffs kept the transactions one could not at this stage of the alive by borrowing stocks from case be made of the whole prop- time to time to replace the stocks erty.

previously borrowed. On January Order affirmed.

5, 1881, they notified the execuOpinion by Davis, P.J.; Brady, trix to furnish additional margin concurs.

or a delivery to them of the shares

of stock then short on or before BROKERS.

Jan. 7, 1881, or, on default there

of, plaintiffs would purchase the N. Y. COURT OF APPEALS.

same at the New York Stock ExHess et al., respts., v. Rau,exrx., change. Defendant failed to comapplt.

ply with this demand, and plainDecided March 21, 1881.

tiffs purchased the stock. and

there was a loss on the transaction A broker in a stock transaction is not bound to close it after the death of the principal

of $9,437,98. A verdict was renwithout awaiting the appointment of a

dered for the plaintiffs.


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Leopold Wallach, for applt. fruits of any judgment which may be had D. M. Porter, for respts.

the case is clearly within the provisions of

$ 3247 of the Code. Held, That plaintiffs were en

A mortgagec who procures the bringing of titled to recover. The rule that

and promotes an action in the name of the the death of a principal revokes mortgagor to compel a grantec of the latter the authority of an agent has an

to perform bis agreement to pay said mort

gage is bencficially interested in the action exception when the agency is

within the provisions of said section. coupled with an interest. 8 Wheat, 174. The death of R. left plain- This action was brought to comtiffs in the position they had pre- pel the defendant W., who had by viously occupied of being borrow- agreement with plaintiff assumed ers of the stocks to deliver, with a to pay a mortgage executed by her personal liability to replace them to one L., to perform his agreewhen called for by the lenders. ment. L. was joined as a party This obligation was not and could defendant, but was not served with not be terminated by the death of process and did not appear in the R. His estate was bound to in action. The evidence showed that demnify plaintiffs for any loss L. advised and procured the bring. they might sustain on closing out ing of the action, employed the atthe transactions. Plaintiffs were torney, furnished to a great extent authorized, acting in good faith, to the means to carry it on, and genmaintain the existing situation erally directed and controlled the until a representative of R.'s es- proceedings. tate was appointed. The act of A judgment was rendered for buying in the stocks on account of the defendant, and L. was directed the estate would have been a more to pay the costs of the action. decisive act of agency than to It appeared that the mortgage borrow stocks to replace others was an inadequate security and previously borrowed, in order to that the obligor on the bond has discharge their own obligation. become insolvent. Judgment of General Term, af

B. F. Tracy, for applt. firming judgment on verdict for plaintiffs, affirmed.

0. W. West, for respt. Opinion by Andrews, J. All Held, No error; that L. was so concur.

far identified in interest with the

plaintiff as to be “beneficially inCOSTS.

terested” in the action within sec.

tion 3247 of the Code of Civil ProN. Y. COURT OF APPEALS.

cedure. 1 Hill, 32 ; 12 N. Y., 32. Slauson v. Watkins, impld., When an action is brought in respt.

the name of another for the direct Decided March 21, 1884.

benefit of the promoter, and the

relief is framed so as to give him Where an action is brought in the name of another for the benefit of the promoter and

the fruits of any judgment which the relief is framed so as to give him the may be had, the case comes within

Vol. 18.–No. 24a.

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