remedy was by a motion for bill C. B. Alexander, for applt. that Held, That the motion was correctly disposed of at Special Term except in one single particular; that the allegation that defendant "by its officers and agents" made divers false representations was bad pleading; that the allegation should have been defendant made the representations, under the maxim qui facit per alium, facit per se, and that, if plaintiff chose to persist in the form of pleading adopted by him, he should declare specifically the particular officers and agents by whom he claimed such representations were made; that a motion for a bill of particulars was not an efficient remedy. Order modified by requiring plaintiff to make the complaint more definite and certain in this particular, and, as so modified, affirmed. Opinion by Davis, P. J.; Brady, J., concurred. PRACTICE. N. Y. SUPREME COURT. GENERAL The court has power in its discretion to refuse to postpone the trial of an action on the ground of the absence of counsel who were to aid plaintiff's attorneys. It is not irregular for the court to adjourn the hearing of an unfinished cause and call up another case and proceed to dispose of it. The terms to be imposed upon granting a favor are within the discretion of the court when the application is made and the exercise of such discretion will not be interfered with unless there was an abuse of the discretion or it was mistakenly exercised. Appeal from order of Special Term, opening a default taken at a Special Term dismissing the complaint with costs. The default was taken as follows: The Special Term at the opening of the court adjourned a prior unfinished cause to 2 P. M., and called up this case. Plaintiff's attorney asked for a postponement on the sole ground of the absence of counsel who had promised to attend and aid in the trial. The court heard the application and defendant's opposition and concluded to refuse to postpone and to order the complaint dismissed with costs to each defendant who had separately appeared. This is claimed to be irregular. Jas. Stanley, for applt. Wm. James and George B. Warner, for respts. Held, That the court did not abuse its discretion when it refused to postpone. It may have believed plaintiff's attorneys adequate for the trial of the action. That the circumstance that the court had adjourned the prior unfinished cause did not deprive it of jurisdic Mary Flannery, applt., v. Henry tion of this cause and it was not James et al., respts. Decided Oct., 1883. irregular or beyond the power of the court to call up this cause at 10 A. M., and proceed with the disposition thereof, and the court had power to refuse to postpone on account of the absence of counsel to aid plaintiff's attorney and to dismiss the case when plaintiff failed to produce witnesses and enter upon the trial of the issues of fact. The court at Special Term has a general supervision of the calendar and any action taken by it as to the order of its business, not objected to at the time, cannot be said to deprive it of power and jurisdiction to proceed with a cause when counsel, as in this, on both sides appear. The order appealed from opened the default on condition that plantiff pay each of the defendants. $30 costs and $10 costs of opposing motion and disbursements as taxed, and that she and her hus band vacate the premises described in the complaint. Held, That the terms to be imposed on granting a favor are within the judicial discretion of the court when the application is made, and this court does not interfere with the exercise of such discretion unless it is of the opinion that the discretion has been abused or mistakenly exercised. 4 Lans, 476; 85 N. Y., 479. We are satisfied that the court did not abuse its discretion nor impose terms unreasonable. Plaintiff can comply and thus secure the opportunity to have her case heard on the merits. Order affirmed, with $10 costs. to be divided between respondents and the disbursements of each. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Dwight B. Dewey et al., v. J. Burton Finn. Decided Oct., 1883. A receiver in supplementary proceedings is not justified by the order of appointment in taking forcible possession of property in the possession of a third person who claims to own it. The third person, not a party to the proceed ing and without notice thereof, whose property is thus seized and carried away is entitled to the usual remedies given by common law and is not punishable for contempt where he sues the receiver for the trespass without leave of court. Appeal by one C. from order imposing a fine of $10 upon him for contempt of court. One H. was appointed receiver of defendant in supplementary proceedings commenced in February, 1883. Prior to the service of the first order defendant sold certain property to C., who took possion of it. After his appointment, H. with others went to C.'s premises and took possession of the property. Thereupon C. commenced an action against H. individually, and those who assisted him in taking the property, and recovered judgment. For bringing such action C. was adjudged in contempt. Thos. F. Kearns, for applt. Held, Error; that assuming that C. was in possession of the property and was the owner thereof prior to the service of the order first issued in the supplementary proceedings the receiver had no title to it, as he only took such title as the judgment debtor had at the time of the service of the order. Hence the receiver was not as such entitled to take the possession and title of the property from C.; nor did the order appointing him in terms extend to that property. When property is in the possession of a third party and claimed to be owned by him the same cannot be taken by a receiver, nor can the third party be ordered to deliver the same to the receiver. such property is forcibly taken by a receiver, the order appointing him cannot justify the taking. See Willard Eq. Jur., 335; 8 Paige, 390; 40 N. Y., 383; 3 Hun, 367. When Under the former practice the receiver might call upon the master to decide what property legally or equitably belonged to the defendant, and to which the receiver was entitled under the order of the court, 8 Paige, 388; but the court did not protect the rights of a receiver, by a summary proceeding against a person not a party to the suit, who seized upon property which was never in possession of the receiver or his agents. 9 Paige, 372. The third party whose property is seized and carried away from his possession is entitled to the usual remedies given by common law, and for asserting such right, where he has not been made a party to a prior proceeding or had notice thereof, he ought not to be punished as for a contempt. TERM. FIRST DEPT. Charles E. Fleming et al., respts., v. Elbert L. Burnham et al., applts. Decided March 7, 1884. In an action for the partition of real property where one of the parties is the undisputed owner of two thirds of the property to be divided, while the title to the remaining one-third is in dispute among the other parties, the Court, in the interlocutory judg ment, will order the sale of the property in one parcel, and give directions that onethird of the proceeds shall be brought into court to await the result of the controversy over its ownership, although if there had been no such controversy the property would have been actually partitioned. Appeal from order of Special Term overruling exceptions to the referee's report and confirming the same. This action was brought for the partition of certain real property. Plaintiff was the undisputed owner of two-thirds of the property, while the remaining one-third was in dispute between the defendants. Plaintiff desired a sale of the premises in a single parcel and a division of the proceeds, while the defendant Elbert L. Burnham insisted that an actual partition should be made. The referee appointed for that purpose reported that actual partition could not be made, and his report was confirmed and an interlocutory decree was entered decreeing the sale of the property in a single parcel. The defendant Elbert L. Burnham appealed from the order confirming the referee's report. G. W. Lord, for applt. A. Thain, for respt. representative, but is authorized, acting in good faith, to maintain the existing situation until a representative of the estate shall be appointed. This action was brought to recover from defendant a balance Leroy B. Crane, guardian ad due plaintiffs, a firm of stocklitem for infant defendants. Held, That the order could not be sustained but for one fact that appeared in the case, which was the controversy over the question of title which was involved and was to be tried in the action; that, under such circumstances, it was impracticable to make equal partition among the various claimants of this one-third, because the Court could not at this stage of the case determine their respective rights; that it would be unjust to plaintiff to withhold the relief to which he was clearly entitled until those litigants as to rights in which he was not interested shall have reach ed a determination of their controversy; that for that reason an equal partition would be impracticable, inasmuch as a complete one could not at this stage of the case be made of the whole property. Order affirmed. brokers, for loss on certain stock transactions conducted by them for R. her testator. The loss in question arose out of the following transactions. Plaintiffs in June, July and August, 1880, sold short by direction of R. 600 shares of D., L. & W. stock, and 400 shares of N. J. Central stock. Plaintiffs were to procure the stocks so sold by borrowing them, or in some other way, to deliver to the purchasers. Said stocks so sold were not purchased or the transaction closed at the date of R.'s death, Oct. 29, 1880. Letters testamentary were issued to defendant Dec. 29, 1880. During the time intervening between the death of R. and the qualification of his executrix, plaintiffs kept the transactions alive by borrowing stocks from time to time to replace the stocks previously borrowed. On January 5, 1881, they notified the execu Opinion by Davis, P. J.; Brady, trix to furnish additional margin J., concurs. BROKERS. N. Y. COURT OF APPEALS. Hess et al., respts., v. Rau,exrx., applt. Decided March 21, 1884. A broker in a stock transaction is not bound to close it after the death of the principal without awaiting the appointment of a or a delivery to them of the shares of stock then short on or before Jan. 7, 1881, or, on default thereof, plaintiffs would purchase the same at the New York Stock Exchange. Defendant failed to comply with this demand, and plaintiffs purchased the stock, and there was a loss on the transaction of $9,437,98. A verdict was rendered for the plaintiffs. Leopold Wallach, for applt. D. M. Porter, for respts. Held, That plaintiffs were entitled to recover. The rule that the death of a principal revokes the authority of an agent has an exception when the agency is coupled with an interest. 8 Wheat, 174. The death of R. left plaintiffs in the position they had previously occupied of being borrowers of the stocks to deliver, with a personal liability to replace them when called for by the lenders. This obligation was not and could not be terminated by the death of R. His estate was bound to indemnify plaintiffs for any loss they might sustain on closing out the transactions. Plaintiffs were authorized, acting in good faith, to maintain the existing situation until a representative of R.'s estate was appointed. The act of buying in the stocks on account of the estate would have been a more decisive act of agency than to borrow stocks to replace others previously borrowed, in order to discharge their own obligation. Judgment of General Term, affirming judgment on verdict for plaintiffs, affirmed. Opinion by Andrews, J. concur. COSTS. N. Y. COURT OF APPEALS. All Slauson v. Watkins, impld., respt. Decided March 21, 1884. Where an action is brought in the name of another for the benefit of the promoter and the relief is framed so as to give him the Vol. 18.-No. 24a. fruits of any judgment which may be had the case is clearly within the provisions of 3247 of the Code. A mortgagee who procures the bringing of and promotes an action in the name of the mortgagor to compel a grantee of the latter to perform his agreement to pay said mortgage is beneficially interested in the action within the provisions of said section. This action was brought to compel the defendant W., who had by agreement with plaintiff assumed to pay a mortgage executed by her to one L., to perform his agreement. L. was joined as a party defendant, but was not served with process and did not appear in the action. The evidence showed that L. advised and procured the bringing of the action, employed the attorney, furnished to a great extent the means to carry it on, and generally directed and controlled the proceedings. A judgment was rendered for the defendant, and L. was directed to pay the costs of the action. It appeared that the mortgage was an inadequate security and that the obligor on the bond has become insolvent. B. F. Tracy, for applt. Held, No error; that L. was so far identified in interest with the plaintiff as to be "beneficially interested" in the action within section 3247 of the Code of Civil Procedure. 1 Hill, 32; 12 N. Y., 32. When an action is brought in the name of another for the direct benefit of the promoter, and the relief is framed so as to give him the fruits of any judgment which may be had, the case comes within |