Peck agt. Peck.

The plaintiff has had due notice of this proceeding, and makes no objection thereto. It remains to consider whether or not any legal impediment is interposed by section 1761 of the Code of Civil Procedure (Session Laws 1880, chap. 178).

This section would seem to restore the prohibition as to remarriage by defendant during the lifetime of the plaintiff, and is, apparently, inconsistent with section 49 of the Revised Statutes, as amended by chapter 321 of the Laws of 1879. If these statutes were the only guide to their own construction, the conclusion would follow that the latest utterance of the legislature must control, and the former act would be repealed by implication (Livingston agt. Harris, 11 Wend., 329; Warrington agt. Trustees of Rochester, 10 Wend., 547; People ex rel. Foster agt. Bell, 46 N. Y., 57). But the legisla ture has not left us in doubt upon this subject, for at the same session in which it passed section 1761 of the Code of Civil Procedure, it also, on May 10, 1880, enacted a repealing act, which expressly excepts section 49 of chapter 321 of the Laws

of 1879.

For the purpose of determining the effect of the act comprising the Code of Civil Procedure upon other acts, and the effect of other acts upon it, it was therein especially provided that "this [that] entire act is deemed to have been enacted on the sixth day of January, in the year 1880, and all acts passed after the last mentioned date are to have the same effect as if they were passed after this act" (Section 3355 Code Civil Procedure).

Moreover, said act, comprising such Code of Civil Procedure, was not returned by the governor within the time prescribed, and it became a law without his signature on May 6, 1880 (Session Laws, 1880, vol. 2, sec. 1), whereas the repealing act appears to have been approved by the governor, May 10, 1880 (Laws, 1880, vol. 1, sec. 367), and thereby became the later act.

I cannot disregard the manifest intention of the legislature as expressed by the repealing act. Repeals by implication are not favored, and acts by the governing power, not absolutely

Abrahams agt. Bensen.

inconsistent or repugnant, should be construed in harmony with each other (Rex agt. Justices of Middlesex, 2 Barn. & Adolph., 818; Viners Abr., 132, 575; McCartree agt. Orphan Asylum, 9 Cow., 437; Mayor agt. Walker, 4 E. D. Smith, 258; Wallace agt. Bassett, 41 Barb., 92; Smith agt. The People, &c., 47 N. Y., 333; Heckman agt. Pinckney, 6 Abb. New Cases, 371, affirmed by Court of Appeals; Bowen agt. Lease, 5 Hill, 321; People agt. Dening, 1 Hilt., 271; Van Rensselaer agt. Snyder, 9 Barb., 302; Hayes agt. Symonds, 9 Barb., 260; Powers agt. Shepard, 48 N. Y., 540–4).

Section 1761 of the Code of Civil Procedure and said repealing act both took effect September 1, 1880 (sec. 3356 Code; sec. 5, chapter 245, vol. 1, Laws 1880), so that said section containing the disqualification upon remarriage never became operative law, except as modified by said repealing act.

The defendant's right to the relief sought herein existed prior to September 1, 1880; it was saved by the repealing act; it is not necessarily inconsistent with or repugnant to section 1761 of the Code, and this application should be granted.

SUPREME COURT.

HENRIETTA ABRAHAMS, respondent, agt. CHARLES B. BENSEN, survivor, appellant.

Venue - Where place of trial has been changed on application of a codefendant, and acquiesced in by the sheriff, the other defendant, under what circumstances it will be retransferred on application of defendant sheriff.

Where the place of trial of an action, begun in Rockland county, against the sheriff of that county, and a codefendant, for acts done by the sheriff in his official character, has been changed on application of the codefendant, acquiesced in by the sheriff to New York, and the case has been there tried twice, yet it being now shown that the codefendant has died insolvent; that the cause of action arose in Rockland county; that both parties and a large number of the witnesses reside there, and considering the condition of the calendar in the two counties:

Abrahams agt. Bensen.

Held, that the action, on application of defendant, should be retransferred to Rockland county, as well for the public interests as for the private interests of the parties.

First Department, General Term, May, 1880. Adjourned to September 7, 1880, when the application was argued and decided November, 1880.

APPEAL from an order of the special term denying a motion to change the place of trial from the county of New York to the county of Rockland.

The action was brought in Rockland county, in July, 1875, against Elkin Hyman and Charles B. Bensen, to recover $6,000 damages for a trespass in taking the property of the plaintiff. Bensen was then sheriff of Rockland county, and Hyman obtained an attachment against the property of Abrahams, otherwise calling himself S. L. Goldberg, the husband of the plaintiff, and directed it to Mr. Bensen as sheriff, who, by virtue of which took certain property in the town of Haverstraw, Rockland county, which the plaintiff claimed was her property.

The answer of Hyman charged that it was not her property; that her husband had done business under the name of S. L. Goldberg; had failed; had clandestinely disappeared from his creditors, and was found two years afterwards at Haverstraw, doing business in his wife's name; and that there was fraud and collusion between the plaintiff and her husband to cheat and defraud his creditors, and to hide his property from them.

The sheriff knowing nothing of these matters interposed the usual answer, that he had taken the property by virtue of legal process directed to him as sheriff, and relied upon the answer of his codefendant as to the fraud and justifi

cation.

Mr. Hyman obtained a verdict and judgment in his action against plaintiff's husband, after a trial before a jury; execution was issued to sheriff Benson; the property sold, the VOL. LIX

27

Abrahams agt. Bensen.

proceeds paid to Mr. Hyman, and the sheriff paid his legal fees. For a time both Hyman and Bensen were represented by George F. Langbein, Esq., as their attorney, but shortly after Hyman had an attorney substituted for himself, and moved to change the place of trial from Rockland county to New York county for the convenience of his witnesses, without giving any notice thereof to Mr. Bensen. This motion the plaintiff opposed, she making an affidavit that it was for the convenience of her witnesses to have the trial in Rockland county. Mr. Hyman succeeded, and the place of trial was changed to New York county, Mr. Bensen having received no notice, and not appearing or being heard on the motion; neither was a copy of the order ever served upon him or his attorney.

After that Hyman went to Denver city, Colorado territory, very sick in health, and pecuniarily worthless. Plaintiff took an inquest in New York county, which was opened by Mr. Bensen, who prepared to defend in chief. Mr. Hyman refused to leave Denver city unless the trial was had in New York county. A trial was then had in New York county before justice DONOHUE and a jury, commencing January 29, 1878, and ending March 5, month, the trial occupying ten actual days. to agree upon a verdict.

1878, over one

The jury failed

Mr. Hyman then died, May 1, 1878. Whereupon Mr. Bensen made a motion to change the place of trial back to Rockland county upon the facts showing the illegality of the order removing it. This motion was denied upon the ground that it must be made and heard in the second department.

Upon the motion being made there, judge DYKMAN set aside the order as null and void, holding that Mr. Bensen had never had his day in court concerning it, thus removing the place of trial back to Rockland county. From this order the plaintiff appealed, and the general term, sitting at Brook

lyn, reversed the order of judge DYKEMAN. The defendant Bensen then appealed to the court of appeals, and that court

Abrahams agt. Bensen.

dismisssed the appeal upon the ground that he had acquiesced in the illegal order by going to trial upon it (See the appeal reported in 76 N. Y. Reps., p. 629). Another trial was then had in New York county before justice LAWRENCE and a jury, commencing December 3, 1879, and ending December 12, 1879, lasting full nine days, when the jury for the second time failed to agree upon a verdict. Justice LawRENCE said to counsel in discharging the jury: "It would be cheaper for the county of New York, and it would save money, to pay the plaintiff's claim, rather than have the expense of another trial."

Mr. Bensen then moved, upon all these facts, to change the place of trial back to Rockland county, claiming that he had been put to enormous expense and to very great inconvenience to himself and his witnesses, by reason of the two trials in New York county; that the plaintiff and her attorney, the defendant and his counsel, Cornelius Hoffman, Esq., and a majority of the witnesses, resided at Haverstraw and Nyack, and other places in Rockland county, and that another trial in New York county would be a terrible strain upon him, and would be very expensive and of great inconvenience to these numerous witnesses; that many of them were public officials, a justice of the court of sessions, a justice of the peace, and lawyers and merchants of Haverstraw; that he had had great labor, trouble and difficulty to keep all these witnesses in New York county continuously so many days, and was often in jeopardy of losing their testimony; he dreaded that, upon a third trial in New York county, he would lose the testimony of some of them and have greater trouble, difficulty, inconvenience and expense than he had before, and gave some instances of facts of some of the witnesses refusing to attend in New York a third time for a third trial.

This motion was denied, upon the ground that the decision of the motion in the second department disposed of this, and from this order Mr. Bensen appealed.