of his indorsement, would have been discharged; but it is argued by the respondent that the note is now completely merged in the judgment, that the former position of the parties as maker and indorser is changed, that as judgment was only entered against Borea he is the only person liable thereon, and that the Hargood Realty & Construction Company, though before judgment the party liable primarily for the payment of the debt, is now as by magic transformed into a complete stranger to the transaction, who may pay the judgment, take an assignment of it, and proceed against the debtor, his former payee, to enforce it. We do do not so understand the law. The true application of the doctrine of merger in such cases is clearly and ably stated by the Court of Appeals in Clark v. Rowling, 3 N. Y. 216, 53 Am. Dec. 290, as follows:

"It is true that the notes as evidence of an indebtedness, were merged in the judgment, which, being greater security, operated to extinguish the lesser; but does it therefore follow that the judgment to all intents became a new debt, and that the merger or extinguishment of the notes was so complete as that, for the purpose of protecting the defendants in an equity connected with their original indebtedness, we may not look behind the judgment and see upon what it was founded. A judgment, instead of being regarded strictly as a new debt, is sometimes held to be merely the old debt in a new form, so as to prevent a technical merger from working injustice."

The language of the Court of Appeals applies with peculiar aptness to the facts of this case. The liability of Borea on his indorsement is that of surety only. As against the Hargood Realty & Construction Company, he is entitled to full indemnity for any payment he is compelled to make on account of the note, whether his payment be of the note itself or of a judgment entered upon it. In Taylor v. Simpkins, 38 Misc. Rep. 246, 77 N. Y. Supp. 591, the learned Special Term, in a similar case, said:

"A surety is entitled to the same rights after judgment has been rendered against him as before, and any action on the part of the creditor which would have released the surety before judgment will equally release him afterward."

If judgment on this note, instead of being taken against Borea alone, had also been entered against the Hargood Realty & Construction Company there would be no question but that a payment by the Hargood Realty & Construction Company, or an assignment to them, would have discharged Borea. The mere fact that the plaintiff failed to pursue his full remedy does not change the relations of these parties. Behind this judgment there is a single debt, for which the respondents are primarily liable. If the appellant should pay the debt to the respondents, he would immediately have a right of action against them to recover back what he had paid. Such an absurdity the law will not countenance.

The order appealed from should be reversed, with $10 costs and disbursements to the appellant, and the judgment should be discharged of record. All concur.

(Supreme Court; Appellate Division, First Department. November 8, 1912.) INJUNCTION (§ 3*)-INSURANCE IN AID OF ACTION-STATUTES.

In a proceeding under Membership Corporations Law (Consol. Laws 1909, c. 35) § 16, to subject a cemetery corporation to the visitation and inspection of a justice of the Supreme Court, in which the petition alleged misappropriation of the cemetery funds, the court had no authority to grant an injunction to restrain the association from transferring or selling any of its property pending the visitation; Code Civ. Proc. § 602, providing that the right of injunction has been abolished, but that a temporary injunction may be granted by order, as prescribed in the article, and the article not authorizing an injunction in such case.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 3; Dec. Dig. 3.*]

Appeal from Special Term, New York County.

In the matter of the petition of John Arthur Greene and another for a visitation by a justice of the Supreme Court of Pinelawn Cemetery. From an order at Special Term, requiring respondent to be subject to the visitation and inspection of the court, through a referee, and granting an injunction pendente lite, an appeal was taken. Affirmed, as modified.

The petition alleged the misappropriation and diversion of the cemetery funds, and the injunction restrained the cemetery association. from transferring or selling any of its property pending visitation. Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.

Gilbert W. Minor, of New York City, for appellant.

Milne, Blake & McAneny, of New York City (William Edwards Milne, of New York City, of counsel), for respondent.

CLARKE, J. Section 16 of the Membership Corporations Law (chapter 35, Consol. Laws; chapter 40, Laws of 1909), provides that: "All membership corporations, with their books and vouchers, shall be subject to the visitation and inspection of a justice of the Supreme Court, or of any person appointed by the court for that purpose. If it appears to such court by the verified petition of a member or creditor of any such corporation, that it, or its directors, officers or agents, have misappropriated any of the funds or property of the corporation, or diverted them from the purpose of its incorporation, or that it has acquired property in excess of the amount which it is authorized by law to hold, or engaged in any business other than that stated in its certificate of incorporation, it may order that a notice of at least eight days be served on the directors of the corporation, with a copy of such petition, requiring them to show cause at a time and place to be therein specified, why they should not be required to make and file an inventory and account of the property, effects and liabilities of such corporation with a detailed statement of its transactions during the twelve months next preceding the granting of such order; and if, on the hearing of such application, no good cause is shown to the contrary, the court may make an order requiring such inventory, account and statement to be filed, and proceed to take and state an account of the property and liabilities of the corporation, or appoint a referee for that purpose; and when such account is taken and stated, it may, after hearing all the parties to the application, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

enter a final order determining the amount of property so held by the corporation, its annual income, whether any of the property or funds of the corporation have been misappropriated or diverted to any other purpose than that for which such corporation was incorporated, and whether such corporation has been engaged in any other business than that specified in its certificate of incorporation, from which final order an appeal may be taken by any party aggrieved to the Appellate Division of the Supreme Court, and to the Court of Appeals; but no corporation shall be required to make and file more than one inventory and account in any one year, nor to make a second account and inventory, while proceedings are pending for the statement of an account under this section."

Article 4 of said Membership Corporations Law is entitled "Cemetery Corporations." Section 60 thereof provides:

"This article does not apply to cemeteries belonging to religious or munici pal corporations."

The Pinelawn Cemetery does not belong to a religious or municipal corporation, and therefore the provisions of the statute seem to apply thereto.

We are of the opinion that the propriety of the order providing for a visitation and the taking of an account sufficiently appears from the moving papers. The order, however, contains an injunction. No. provision of the Code of Civil Procedure, or any other statutory authority, for the issuance of this injunction in this special proceeding to procure an order for a statutory visitation, is cited by the learned. Special Term or in the briefs of counsel. Section 602 of the Code of Civil Procedure provides that:

"The writ of injunction has been abolished. A temporary injunction may be granted by order, as prescribed in this article."

There are no provisions in said article that are applicable. In Bachman v. Harrington, 184 N. Y. 458, 77 N. E. 657, it is said:

"It is well settled by repeated decisions of this court that in this state a court of equity has no inherent absolute power to grant interlocutory injunctions, but that authority therefor must be found in the Code of Civil Procedure."

And in Matter of Dietz v. Dietz, 138 App. Div. 283, 122 N. Y. Supp. 1063, this court said:

*

The

"Under the Code there does not appear to be any warrant for the granting of a temporary injunction save in an action, * * and the difference between an action and a special proceeding is clearly drawn. only exceptions of any kind to this rule, contained in the statutes and authorizing the issuance of an injunction order, are to be found in the few isolated cases where an injunction order is authorized in a special proceeding specifically named."

The court further stated:

"And it may well be that there are instances where, in special proceedings brought for specified particular purposes under the general powers of the court, it would be authorized to issue a temporary staying order to insure the efficient execution of its final determination."

The foregoing case, and Woerishoffer v. North River Co., 99 N. Y. 398, 2 N. E. 47, and Attorney General v. Guardian, etc., Co., 77 N. Y.

272, were relied upon. In the Woerishoffer Case the court, referring to the order under review, said:

"Its sole effect, as against the appellant, is to prevent a seizure under process, issued in its action, of assets already seized by the court, and held as well for the appellant's benefit as for that of the other creditors. It operates to prevent the Iron & Steel Company from attaching or levying upon, for its own sole benefit, property already attached and levied upon by an equitable process for the benefit of all the creditors alike. It preserves every right and lien acquired before the appointment of the receiver by the attachment creditor, and the privilege and power of enforcing them, and so raises merely the question whether the tribunal which appoints a receiver may, in aid of that appointment, forbid any after interference by way of levy or seizure with the property in his possession. The power of the court to make that order, in a case where it had jurisdiction to appoint the receiver as a necessary incident of that appointment, cannot be successfully disputed."

And, speaking of Attorney General v. Guardian, etc., Co., 77 N. Y. 272, the court further said:

"The order was not granted or defended as an injunction order, but as one within the jurisdiction of a court of equity in an action pending before it, and essential to the complete remedy which it was authorized by law to give."

It does not seem to us that any of these cases authorize the injunction in the matter at bar. This is not an action; it is a mere investigation of existing conditions. Even if it be conceded that the court, under some possible circumstances, has the power to issue stays or other restraining orders in aid of its clearly authorized process, it seems to us that such power should not be exercised in a matter of this kind to the extent illustrated by the order appealed from.

The order appealed from should therefore be modified, by striking out the injunction provisions, and, as modified, affirmed, without costs to either party. All concur.

FARIS et al. v. BUTLER.

(Supreme Court, Appellate Term, Second Department. May 29, 1912.) LANDLORD AND TENANT (§ 208*)—RENT-EXCHANGE OF PREMISES.

Where defendant agreed to exchange apartments with another tenant, but the exchange was not approved by his landlord, defendant was liable for the rent of the apartment on which he had a lease and was not entitled to credit for payments of rent by the tenant with whom he had exchanged and which the landlord applied on such tenant's original lease.

[Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 737, 821-831; Dec. Dig. § 208.*]

Appeal from Municipal Court, Borough of Brooklyn, First District. Action by William D. Faris and another against Walter C. Butler. From a judgment in their favor, but for less than they claimed, plaintiffs appeal. Reversed and remanded.

Argued May term, 1912, before KELLY, JAYCOX. and CLARK, JJ.

Martin B. Faris, of Brooklyn, for appellants.

Ferguson & Peavey, of New York City, for respondent.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 138 N.Y.S.-7

PER CURIAM. Plaintiffs owned an apartment house. Defendant was a tenant of an apartment under a written lease expiring September 30, 1911, at $35 a month. One Bostick was a tenant of another apartment in the same building at a rental of $28 a month. Defendant claims that prior to June 1st he arranged with Bostick for an exchange of apartments; Bostick to take defendant's $35 apartment, while defendant took Bostick's $28 apartment.

It may be that defendant and Bostick entered into the agreement, and it was proved that Bostick moved into the defendant's apartment, although defendant never occupied Bostick's apartment. But plaintiffs never agreed to release the defendant from the liability under his original lease at $35 a month, or to release Bostick from his obligations. The superintendent of the building testified that they might exchange apartments as between themselves, if they saw fit; but he . insisted on the rentals payable in the leases from the tenants therein mentioned. When Bostick sent in $35 for rent in June, the superintendent notified him that his rent was $28, and credited him with $7 on the July rent; and accordingly in July Bostick only paid $21. In August and September Bostick also paid $28, the rent of his original apartment. As matter of fact, Butler, the defendant, never occupied the $28 apartment and never paid any rent for it.

Defendant claims that he has the right to have the $28 a month paid by Bostick applied on his liability for $35 rent, and the learned trial justice has sustained the contention, and has given judgment against Butler for $28, viz., $7 a month for four months. If this is right, then the plaintiffs must follow Bostick for the rent of the original Bostick apartment. Butler has not paid it.

The trouble with the judgment is that it is based on the theory that plaintiffs, the landlords, were in some way bound by the trading of the leases between Bostick and Butler. There is no evidence to sustain this contention. Bostick remained liable on his lease, and continued to pay the rent at $28 per month. Butler continued liable on his lease, and was liable for $35 per month, none of which has been paid.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

FREDERICK FIGGE CO. v. STEVENSON.

(Supreme Court, Appellate Term, Second Department. October 18, 1912.) 1. EVIDENCE (§ 217*)-ADMISSIONS-Party,

In an action for damages caused by a truck, the statements of defendant as to his ownership of the truck or his connection with the accident were competent as admissions.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 760; Dec. Dig. § 217.*]

2. APPEAL And Error (§ 1056*)-HARMLESS ERROR-EXCLUSION OF EVIDENCE In an action for damages caused by a truck, where the negligence was clear, and where defendant's ownership of the truck was the only real For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes