shall be deemed to be employed in the business of life insurance upon the cooperative or assessment plan, and shall be subject to the provisions of that act; and by section 18 of the act it is provided that membership in any corporation, association, or society transacting the business of life or casualty insurance, or both, upon the co-operative or assessment plan, shall give to any men ber thereof the right, at any time, with the consent of such corporation, association, or society, to make a change in his payee or payees, beneficiary or beneficiaries, without requiring the consent of such payee or beneficiaries. There is no provision in the act that would make the certificate issued in this action illegal, or restrict the power of the corporation to issue such a certificate, but the payment of the amount named to the beneficiary named by the member is expressly recognized by the provisions above cited. The defendant had, therefore, power under its charter to make the contract in question. The defense demurred to alleges that among the by-laws referred to in such certificate of membership issued by this defendant it was provided, by section 2 of article 1, that the objects of said societies shall be to secure mutual benefit and protection to its members, and to furnish aid to their families, their heirs, or relatives by consanguinity or affinity, in case of a member's death, and such beneficiary shall be named in the application; and by another section of said by-laws it is provided that the plan of the society is to issue membership certificates for a sum not to exceed $2,000, to be paid to the heirs or beneficiaries of deceased members, named in his certificate. No by-law is alleged that makes a certificate which names a beneficiary, who is not related to the member, void, or that limits the power granted by the statute to the corporation, or that provides that the statement in the application for membership, as to the relationship of the beneficiary, which was untrue, should avoid the certificate. There is no allegation in the defense demurred to that the certificate contained any statement making the by-laws a part of the certificate; and where the statute under which the defendant is organized and is acting expressly recognizes the right to name a beneficiary, without limiting the beneficiary to any particular class, and nothing in the by-laws or the certificate expressly restricts such right, the corporation had power to issue the certificate; and no fact is alleged in the second defense that would make the certificate void. The case, therefore, comes within the decision of Massey v. Society, 102 N. Y. 529, 7 N. E. Rep. 619. The defendant accepted Eckert as a member, received his dues and assessments, and thereby agreed to pay to the person named in the certificate the sum of $2,000. The defense is an extremely technical one, and I do not think should prevail. The demurrer is sustained, and judgment ordered for the plaintiff on the demurrer, with costs, with leave to the defendant to amend the answer within 20 days, on payment of costs.

(50 Hun, 405)

In re SOUTH BROOKLYN R. & T. Co.

(Supreme Court, General Term, Second Department. October 1, 1888.) EMINENT DOMAIN-PROFILE OF RAILROAD-ADDITIONAL LAND FOR CUT AND FILL.

Under Laws N. Y. 1850, c. 140, §§ 22, 28, providing that a railroad company, before constructing any part of its road, shall make a profile of its intended route, and give the occupants of land proposed to be taken 15 days' notice thereof, during which they may apply for a change of route, and that for road purposes a strip of land not more than 6 rods wide may be taken, and, at points where cuts or embankments are necessary, enough more to insure their safety, no new profile is necessary before taking such additional land of an owner who did not apply for a change of route, upon its being found necessary to make a cut 70 feet deep at that point.

Appeal from special term, Kings county; CULLEN, Justice. Application by the South Brooklyn Railroad & Terminal Company for the appointment of appraisers of land sought to be taken for railroad purposes. Mary Gates and George Gates, her husband, and John P. Morris, Sylvester J.

Morris, and Simon B. Morris, executors, etc., of Leah Morris, deceased, were made parties, as being owners of the land. From an order denying the application, the railroad company appeals.

Argued before BARNARD, P. J., and PRATT, J.

Johnson & Lamb, for appellant. William S. Cogswell, for respondents.

BARNARD, P. J. By subdivision 4, § 28, c. 140, Laws 1850, it is provided that railroads, after incorporation, may lay out a road not exceeding six rods in width, and to construct the same, and for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the road, and to cut down any standing trees that may be in danger of falling on the road; making compensation therefor, as provided in this act, for lands taken for the use of the company. Every railroad company, before constructing any part of its road, is required to make a map and profile of the route intended to be adopted in every county through which the proposed route is located. Section 22. Notice must then be given to all actual occupants of the land proposed to be taken. Fifteen days' time is given to the owner to apply for a change of route. The defendant made a map and profile of its route, and this map included the entire statute width, -99 feet, and no more. In constructing the road it is necessary to make a cut 70 feet at one part of the route. In making this cut it is necessary to take land adjacent and outside of the 99 feet. No change of route was proposed by the land-owner. The question presented is whether the company can take this additional land without a new map and profile. I think it can. The statute absolutely limits the width of the road, and this strip is taken. It is not reasonable to suppose that the legislature intended that the additional land made necessary, for the security of the road, for slopes, for cuttings, and embankments were at all hazards to be anticipated by the company. So much depends upon the material included in this cut or embankment that nothing but actual experience can give evidence of this need of the additional land required for their safe construction. If the cut develops quicksand, or if the rock is shelly, a need is at once presented for more land, and not certainly until then. It is a more reasonable construction of the railroad act that this additional land was to be taken as its need was developed after the construction was commenced. The order should, therefore, be reversed, with costs and disbursements, and a commission appointed to appraise the land in question. Unless an issue is made on the facts of the petition, leave to make such issue is hereby granted.

(City Court of New York, Special Term. October, 1888.)

STOCK AND PRODUCE EXCHANGES-EXECUTION SALE OF SEAT-CONSENT OF DEBTOR. A court will not require a debtor, whose right to a seat in a stock exchange has been sold by a receiver in supplementary proceedings, to sign a consent that the purchaser take his seat, or to formally resign his seat and nominate the purchaser as his successor, as the sale and purchase, being the act of the law, is equivalent to a resignation and nomination, though the rules of the institution require such written consent to be signed by the seat-holder upon the change of membership, but the debtor will be required to sign a consent that the purchaser be vested with the privileges inuring to his membership.

William P. Roome having commenced supplementary proceedings against his debtor, Samuel H. Swan, the receiver appointed therein sold a seat in the Consolidated Petroleum & Stock Exchange of New York, belonging to the defendant. The latter refusing to execute his written consent to the transfer, application was made for an order compelling him to do so.

Merritt & Rodgers, for receiver. R. S. Crane, for defendant.

MCADAM, C. J. On the 18th of May, 1888, J. Hart Lyon, Esq., was appointed receiver of the defendant in supplementary proceedings, and on May 22d filed the required bond, and entered upon the duties of his office. The defendant, at the time the proceedings were commenced, was the owner of a seat in the Consolidated Stock & Petroleum Exchange of New York. The receiver, on September 26th, sold the seat to James B. Weir, Jr., for $825, and executed to the purchaser a bill of sale of the same. In order to consummate the title of the purchaser, the rules of the exchange require that a consent be signed by the person in whose name the seat stands; and the defendant has refused to execute such a consent. The receiver now applies for an order compelling the defendant to sign the required consent. The application will be so far granted as to require the defendant to sign a consent that the purchaser be vested with all the rights, privileges, and interests which inure to his membership. The court cannot, on this application, require the defendant to formally resign his membership, but the consent required is equivalent to such a resignation; nor can it compel the defendant to nominate or recommend as his successor a person not known to him, as the action of the court renders these formalities unnecessary, for the law will deem the purchaser to be the legal nominee of the defendant, as he does not now possess the authority to nominate any one else. If the exchange refuses to accept the nominee, or refuses to act according to its duty in the premises, the receiver may take such action against it as he may be advised; the character of the action depending upon the final attitude of the exchange. The defendant cannot anticipate the action of the exchange, or make any objection on its behalf, as that institution must, in the nature of things, determine its own course, upon such advice as it sees fit to follow. These directions are in harmony with the policy of the law. See Bank v. Murphy, 60 How. Pr. 426; Londheim v. White, 67 How. Pr. 467; Ritterband v. Baggett, 4 Abb. N. C. 67; Powell v. Waldron, 89 N. Y. 328; Bailey v. Ryder, 10 N. Y. 363.

CAMPBELL v. EBEN

(City Court of New York, Special Term. July 17, 1888.) EXECUTION SUPPLEMENTARY PROCEEDING WHEN DEBTOR MAY BE EXAMINED.

Before the enactment of Code Civil Proc. N. Y. § 2435, which provides that a judgment debtor may be examined in supplementary proceedings only within 10 years after return of an execution unsatisfied, the right to such examination was barred only at the end of the 20 years' life of the judgment. Section 3352 provides that no right previously accrued shall be impaired, unless expressly so declared, which is not the case as to supplementary proceedings; and that prior statutes shall be deemed to remain in force, so far as necessary for enforcing or protecting such right, notwithstanding the repeal thereof. Held, that the latter section saved the right of a judgment creditor, on whose judgment execution was returned unsatisfied, prior to the enactment of the former section, to have the debtor examined at any time during the 20 years.

On motion to vacate an order to examine F. Q. Eben, a judgment debtor, in proceedings supplementary to an execution issued in February, 1874. R. H. Channing, for plaintiff. A. L. Sanger, for defendant.

PITSHKE, J. "Creditors' bills" could be brought at any time after return of execution unsatisfied. McElwain v. Willis, 9 Wend. 560. "Supplementary proceedings," under the old Code of Procedure, § 292, could be also instituted at any time after such return unsatisfied. Owen v. Dupignac, 9 Abb. Pr. 180. Necessarily, therefore, both modes of aiding judginent creditors were only barred from being commenced, by the statute of limitations, at the end of the 20 years' life of a judgment, then presumed to be paid, unless sued upon meanwhile. Driggs v. Williams, 15 Abb. Pr. 477. Under the new

Code Civil Procedure, § 2435, the judgment debtor's examination can be ordered only in case 10 years after return of an unsatisfied execution remain unexpired. In the present instance, more than 14 years have so elapsed. But by section 3352, Code Civil Proc., it is provided that nothing contained in that act (excepting chapter 4, which has no application to supplementary proceedings) should impair any "right" lawfully accrued previously, unless expressly so declared therein, which is not the case as to supplementary proceedings; and that the prior statutes upon the subject shall be deemed to remain in force, so far as necessary for enforcing or protecting such a right, not withstanding the repeal thereof. A "right to" the remedy given by section 292 of the old Code of Procedure had, by the return of the execution unsatisfied in 1874, "accrued" at once; valid, as above shown, for 20 years after entry of the judgment. The judgment creditor had, therefore, in 1888 (within those 20 years) the right to institute these supplementary proceedings, upon proof showing alone the "prerequisites" of the preceding Code on this subject. Bean v. Tonnelle, 24 Hun, 353. The right to bring this remedy was expressly "saved" by said section 3352. That was the very purpose of such a saving clause declaring a non-repeal for certain purposes; for otherwise the "repeal" would have eliminated all right to the remedy, which is well settled law. The right referred to means any right given by the "remedial" statute,—provisions displaced by and removed from the statute-book, to make room for the Code of Civil Procedure. It can have no other signification, since other lawful rights did not "depend on" the said repealed provisions for vitality, and would exist without and apart from such a saving clause. But the mode of procedure after the "proceeding" is duly instituted must be according to the forms of the new Code. That is the plain intent, considering the whole enactment. It was not intended that the methods of "conducting" remedies of both the Code of Procedure and Code of Civil Procedure should co-exist after September 1, 1880, the date of the final taking effect of the new Code. The latter was to govern the conduct of the proceedings. Wheaton v. Newcombe, 11 Civ. Proc. R. 91, is simply a case of "unearned" costs, and not in point. See Munson v. Curtis, 6 N. Y. St. Rep. 189, where held, page 190, that a statutory right of review on appeal is a right "accrued," and hence saved by said section 3352. Motion denied, but without costs.

CARRIGAN v. WASHBURN.

(City Court of New York, Special Term. July 23, 1888.) EXECUTION AGAINST THE Person-VACATING ORDER OF ARRrest.

Plaintiff, in an action on a note, obtained an order of arrest, which was afterwards dissolved because the complaint was insufficient to sustain it. An averment was thereupon added to the complaint that defendant was guilty of fraud in contracting the debt. Held, that the action, being still based on the note, remained ex contractu; and under Code Civil Proc. N. Y. § 1487, which confines the right to a body execution in an action ex contractu to a case where an order of arrest was obtained and executed, and remains unvacated, a new order of arrest was necessary to authorize a body execution.

On motion to vacate execution against the person.

Action on a promissory note, brought by G. Carrigan against H. L. Washburn.

W. L. Vanderzee, for motion. Harrison & Langdon, opposed.

PITSHKE, J. The parties undoubtedly can by consent defer the issuance of a body execution, without prejudice to any existing right to arrest; and the giving and acceptance of notes to pay the judgment may, even without express agreement, amount to such an arrangement, although the same would not wipe out the judgment debt, without a satisfaction piece or release. Insurance Co. v. Church, 81 N. Y. 221. And the non-payment of either of such

notes, and the judgment debtor's procrastination and unfulfilled promises, might, though the body execution issued more than three months after the entry of judgment, be sufficient reasonable cause shown why the application for a supersedeas should not be granted, since section 572, Code Civil Proc., permits the court to excuse the delay in issuing such body execution. De Silva v. Holden, 11 Civ. Proc. R. 406; Indemnity Co. v. Gleason, 53 How. Pr. 122. The creditor could, however, be compelled to procure and cancel the notes as a condition of retaining his body execution, inasmuch as a creditor cannot succeed on an original debt till production and cancellation of the notes received therefor. Holmes v. D' Camp, 1 Johns. 34; Angel v. Felton, 8 Johns. 115; Burdick v. Green, 15 Johns. 247. But passing these facts, and without deciding thereon, I find the body execution issued was void ab initio. The action, as appears from the original complaint served, was commenced ex contractu, for simply the amount of a promissory note, and such original complaint embodied no tort allegations for an arrest of the defendant. The plaintiff's right to arrest defendant, hence, did not, depend upon the nature of the action, but upon extraneous grounds. Accordingly the plaintiff obtained an order of arrest on allegations and proofs dehors the record, which was afterwards vacated, because the complaint was insufficient under section 549, Code Civil Proc. The subsequent adding herein to plaintiff's complaint of an averment that the defendant was guilty of a fraud in contracting the liability sued on, to-wit, in obtaining the sum of money for which said promissory note in suit was given, or inducing the purchase of said note, did not change the nature of the action. Hitchcock v. Baere, 17 Hun, 605; Robertson v. Robertson, 9 Daly, 53-56. The original obligation is not rescinded, but sued on, and affirmed. Benedict v. Bank, 4 Daly, 171. A new order of arrest (Meucci v. Raudnitz, 20 Hun, 343) was necessary to support and allow a body execution herein, under the improved complaint embracing the added allegations required by said section 549, subd. 4, and there characterized as made in an action upon contract, express or implied. Thereafter the case was not a suit for damages, but still ex contractu. This body execution was issued in 1888. Since the Code amendments of 1886 to section 549, leaving only ne exeat cases in section 550, every kind of action (excepting ne exeat cases) must have its complaint embrace the grounds for the order of arrest desired, so as to avoid incarceration continuing under an attorney's subsequent ca. sa., based upon a hearing on affidavits merely, in cases where the cause itself is not in its nature in tort. This innovation was intended as a safeguard for defendants, but not as an extension of the attorney's absolute right to issue body executions; for section 1487 retains the distinction between ex delicto and ex contractu cases, and in the latter confines the right to a body execution to those cases where an order of arrest was obtained and executed against defendant, and remains unvacated. The original order of arrest herein (after being executed against defendant) having been vacated when said body execution herein was issued by the attorney, as appears from the records on file in this court, such intended execution against the person was unauthorized, and a nullity. Section 1487, Code Civil Proc. Motion should be granted, with $10 costs, but with a stay of proceedings on the order in case of an appeal forthwith, as the question is one of great importance, and defendant being out of the limits, and not in custody.

SMITH . EMIGRANT INDUSTRIAL SAV. BANK.

(City Court of New York, Special Term. June 27, 1888.)

1 INTERPLEADER-Notice of CLAIM—ACTION FOR MONEY IN Bank.

In an action by a depositor against a savings bank, for the amount of the deposit, where the bank has received notice from a third person of his claim to the deposit,