People, ex rel. Stover agt. Stiner. By the court, INGRAHAM, P. J. The only question in the case is, whether Stover can take the benefit of the lease from Reynolds to him. Such lease would have been valid, and would have entitled him to the property, if he had not by his contract with Stiner acknowledged his title as landlord, and made an agreement with him up to May, 1865. It does not appear that he ever made any claim under the two year lease, or gave any notice of its existence to Stiner, but as the justice has found the existence of an agreement for letting between Stover and Stiner, we are bound to consider that such a contract was made, and that Stover became the tenant of Stiner up to the 1st of May, 1865. Having thus acknowledged the landlord's right to the premises, and made an agreement with him as tenant for a limited period, he cannot dispute his landlord's title, under an outstanding title held by him, of which the landlord had no notice (9 N. Y. R. p. 45). It may also be doubted whether the lease to Stover was of any validity as against Stiner. This lease was given by one holding a lease for five years, which does not appear to have been recorded, and which would not be valid against any subsequent conveyance. If the lease to Angevine became invalid as against Stover for want of being recorded, the sub-lease to Stover would be also of no validity. Stiner was entitled to the possession of the premises whenever Stover's title ended, and he was the only person who could maintain these proceedings. The case of Griffin agt. Clark (33 Barb. 45), is not in conflict with this ruling. I may entertain doubt from the evidence as to the fact of the new hiring by Stover from Stiner. The facts as stated might be construed as a mere attornment by Stover to Stiner under his lease, but as the justice has held otherwise, and the evidence of Stiner will warrant this finding, we cannot interfere on that ground. The judgment should be affirmed. DeWitt agt. Dennis. SUPREME COURT. TRUMAN DEWITT agt. JOHN DENNIS. The affidavit of the attorney that an order in supplemental proceedings was personally served by the sheriff, is not evidence of due service, so as to authorize the judge to grant an attachment against the judgment debtor for disobedience of it. It is not sufficient to authorize the granting of an attachment to state in the affidavit that some of several successive orders have been duly served. If upon being brought before the judge, the defendant does not admit the contempt as charged, it is irregular to commit him for disobedience of the original order before obtaining his written answer touching the same. If the defendant improperly refuses to answer the interrogatories, the order of commitment should specify such refusal as the misconduct complained of. But before he is adjudged guilty of contempt, he should be furnished with a copy of the interrogatories if he require it, and sufficient time given him to prepare his answer. The order of commitment is void unless it designates the particular misconduct of which the defendant is convicted. Syracuse Special Term, June, 1864. MOTION to set aside attachment, and all subsequent proceedings. The defendant was committed by an order of the county judge of Cayuga county, for refusing to answer interrogatories touching his disobedience of certain orders, requiring him to appear before the referee and answer concerning his property, as well as for his misconduct in not appearing before the referee as required by said orders, without specifying which. No copy of the interrogatories was furnished to the defendant, although demanded. The proceedings prior to the order of commitment are substantially detailed in the opinion of the court. GEORGE RATHBUN, for the motion. MORGAN, J. Before an attachment issues to bring the defendant before the judge for disobedience of an order requiring him to appear before a referee and submit to an examination as to his property, it must be made to appear De Witt agt. Dennis. that the order is lawful (2 R. S. 534, § 1, sub. 3); that is, such an order as the judge is authorized to make, and that it has been duly served (Code, § 302). The manner of service should be stated, so that the judge can see that it is duly served. The service of papers prescribed by the Code does not apply (§ 418). The affidavit of the attorney, Mr. Cox, specifies several such orders without giving copies of any of them, and states that certain of them were personally served by the sheriff. This was not sufficient proof. (See 4 Sandf. S. C. 630; 9 How. 425.) It does not appear that the attachment issued upon any other proof of the service of the orders. If this objection had been specifically taken upon the return of the attachment, I think it would have been fatal. Whether the defendant must be considered as having waived it by not taking the objection, admits of some doubt. But if it is conceded that the defendant was properly brought before the judge upon the attachment, he could only be punished in case he was found guilty, after his answer to the interrogatories had been taken (2 R. S. 537, § 19). The interrogatories must be filed, and the answer thereto obtained, before the judge can make a final order, unless the defendant upon being brought before him admits the contempt as charged (9 Paige, 372). And although it is perhaps sufficient to file the interrogatories with the judge, a copy should have been served upon the defendant, and he should have been granted a reasonable time to put in written answers upon oath. (2 Paige, 103; 2 Barb. Pr. 276, 277.) If he refused to put in written answers after a copy had been served upon him, within the time granted, the judge, instead of committing him for the alleged original disobedience of the order to appear and answer concerning his property, should have committed him for contempt in not answering the interrogatories, and might have imprisoned him until he had answered. And it was irregular to convict him of contempt for disobedience of the original order before such De Witt agt. Dennis. written answers had been obtained. (9 Paige, 372; 2 Barb. Ch. Pr. 277.) It is probable that the judge regarded the defendant's refusal to answer the interrogatories, and his objections thereto, as an admission that he had wilfully disobeyed the original orders. If he in fact admitted the misconduct charged, he should not have been punished for refusing to answer the interrogatories. To prevent any misapprehension in regard to what takes place before the judge in these summary proceedings to bring a party into contempt for disobedience of his lawful orders, every direction should be put into writing, so that the defendant may be able to know what it is he is required to do. I doubt whether the verbal direction given in this case, to answer interrogatories within a given time, is such a lawful order as comes within the meaning of the statute authorizing the judge to punish the defendant for disobedience. At least it should be put into writing before it can be invoked to sustain a conviction for disobedience of it. It is, perhaps, enough to authorize the granting of this motion, to hold that the order of conviction is irregular, for adjudging the defendant guilty of a contempt before his answers were obtained to the written interrogatories. The order, however, convicted him of two contempts, when he could not be convicted of the original contempt until he had answered, except upon the ground that he had admitted it; and in case he admitted it, he could not be convicted of a contempt for not answering. I will observe, however, that I am of the opinion that the order of conviction is not sufficiently definite and specific, and does not properly describe the particular misconduct for which he is convicted. It was improper to include these several orders, and convict him of a general disobedience of all of them. One sufficiently described, would have been enough, if it had been duly served. The attachment, and all subsequent proceedings under Richardson agt. Crandall. it, should be set aside for irregularity, with $10 costs of motion. It seems that this is the proper remedy in such a case (15 How. Pr. Rep. 14). Ordered accordingly. SUPREME COURT. JAMES W. RICHARDSON agt. PETER B. CRANDall. The plaintiff's assignor was a bounty broker, and on the 30th January, 1865, presented a number of men at the office of the defendant-who was provost marshal, for enlistinent, who stated that they had engaged to go into the service of the United States for a bounty of $50 each. They were informed that the county was then paying a bounty of $700 for each man, and that they were held by no contract to enlist for any less sum, and that that amount should be secured to them; but they all persisted in stating that they had agreed to go for $50, and that they were satisfied with that sum, and upon this they were mustered in, and $50 only paid to each. Under these circumstances, and to guard against apprehended desertion, the defendant required the plaintiff's assignor to give bonds of indemnity, as security that the men offered for enlistment should not desert the service before reaching the rendezvous. Accordingly the plaintiff's assignor gave such bonds— twenty-two in number, and deposited the same with the defendant. The men were thereupon mustered and sworn in, and of the number twenty-four deserted before reaching the rendezvous, and were not received, but escaped on the way: Held, that an action by the plaintiff (the claim having been assigned to him by the broker) against the defendant, alleging an unlawful detention of the bonds by the defendant, claiming a restoration, and damages for the detention, could not be maintained. First. It could not be maintained on the ground that the agreement was void as against public policy, assuming that it was made without any special authority of law; because, in addition to the unequivocal indications of bad faith on the part of the men presented for enlistment, the defendant had good grounds for questioning the good faith of the party presenting them, and who was in some sense responsible for their good conduct. The act of requiring indemnity, therefore, was not only not within any inhibition on the score of public policy, but was entirely justifiable by the circumstances, if not one eminently meritorious. Second. It could not be maintained on the ground that the act of the defendant in receiving these bonds comes under condemnation as an act done by color of office, and therefore void, because the class of cases embraced under this head are those which are defined by the statutes of this state, and are intended to apply to those holding office under the state authority. The act of the defendant in taking the bonds, does not come within any statutory prohibition of a |