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sole owner of it, and that the corporation was in no way interested in it; that he informed the defendant of the fact. A brother of plaintiff corroborates the testimony so given. The defendant denied that any such conversation occurred. But nowhere in the record is plaintiff's evidence contradicted that he, and not the corporation, owned the stone. Defendant throughout his evidence declared that he thought or supposed, because of his prior dealing with plaintiff, that he was purchasing the additional bluestone from the corporation. The trial court concluded from the evidence that the plaintiff did not disclose his ownership, and, entertaining that view, decided that he could not maintain this action. The record shows the following colloquy between plaintiff's counsel and the court:

"Plaintiff's Counsel: As I understand, your honor does not want any test!mony as to delivery, or the quantity delivered.

"The Court: No, I think there was never any contract with these people. "Plaintiff's Counsel: Your honor is going to decide the question as to whether or not the contract was made with the plaintiff or with the Borough Cut Stone Company?

"The Court: Exactly. I will give judgment for the defendant, on the ground that there was no contract between these defendants Pizzutielle and Graham. If there was any contract at all, it was between Graham and the Borough Cut Stone Company."

A motion was then made for a new trial, and denied. The court disregarded the unchallenged evidence of plaintiff that he alone was the owner of the stone delivered. The testimony of the defendant that he thought or supposed he was dealing with the plaintiff as an officer of the corporation, because of his prior transactions with such corporation, is neither controlling, nor was it competent. He obtained the property, or at least part of it, as appears by his admission, and he cannot hold it, and yet refuse to pay for it. If he is not liable to plaintiff, then there is no liability to any one; for it clearly appears that the corporation had nothing at all to do with the transaction. Even if it be accepted as true that plaintiff did not at the time of the sale inform defendant of his ownership, plaintiff had the right, nevertheless, to sue and recover for the value of the goods sold. If defendant has a claim against the corporation of which plaintiff is an officer, he can proceed against it; but he cannot defeat the claim in this action merely because of that fact. The judgment for defendant was erroneously awarded, and must be reversed, and a new trial ordered.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

SAGGESE v. VIRGILIO.

(Supreme Court, Appellate Term. November 29, 1907.) EXECUTION-SUPPLEMENTARY PROCEEDINGS-PERJURY-CONTEMPT.

False swearing by a judgment debtor on his examination in supplementary proceedings concerning his property is neither a civil nor a criminal contempt, subjecting him to fine and imprisonment, especially where it does not appear that a right or remedy was impaired, impeded, or defeated.

Appeal from City Court of New York, Special Term.

Supplementary proceedings by Eliseo Saggese, judgment creditor, against Salvatore Virgilio. From an order of the New York City Court, punishing defendant for contempt for false swearing, he appeals. Reversed.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLÄNGER, JJ.

Katz & Greenberg, for appellant.

Jacob H. Corn, for respondent.

PER CURIAM. This is an appeal from an order punishing the defendant for contempt of court for having, as alleged, committed perjury in testifying concerning his property in supplementary proceedings. The case of Bernheimer v. Kelleher, 31 Misc. Rep. 464, 64 N. Y. Supp. 409, seems to cover the case at bar, and calls for a reversal of this order. It was there held by this court that:

"False swearing by a judgment debtor, committed upon his examination in supplementary proceedings, touching the disposition of his property, is neither a civil nor a criminal contempt, and he cannot be punished therefor by fine and imprisonment, especially where it does not appear that a right or remedy was impaired, impeded, or defeated."

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs.

FRANKLAND et al. v. SCHOENFELD.

(Supreme Court, Appellate Term. November 29, 1907.)

1. COURTS-MUNICIPAL COURTS--JUDGMENT-CORRECTION.

Where a verdict was erroneously recorded by the clerk for a less sum than that found by the jury, and judgment was entered for such sum, the court, upon proper notice to defendant, had power to correct the judgment, under Municipal Court Act, Laws 1902, p. 1563, c. 580, § 254, which provides for amending or correcting a judgment which is excessive or contrary to the evidence or to the law.

2. SAME-OBJECTIONS.

Municipal Court Act, Laws 1902, p. 1563, c. 580, § 254, provides for amending a judgment by the judge who presided at the trial, and specifies the time within which a motion to amend must be made; but, where such motion was not disposed of by the proper justice or filed within the proper time, the error in such procedure was waived by a failure to object on those grounds.

3. SAME SUBSEQUENT PROCEEDINGS IN CAUSE.

Where defendant appealed from a judgment, and subsequently the court upon motion ordered the judgment increased in amount to conform to the verdict, and directed defendant to file and serve a new notice of appeal and a new undertaking, the order was too broad, since it rested with defendant whether he would appeal from the judgment as finally rendered, and, if he took such appeal, a new undertaking would necessarily follow if a stay of execution was desired.

Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by Charles Frankland and another against Bernard Schoenfeld. From an order amending the judgment to conform to the verdict, defendant appeals. Modified and affirmed.

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Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLÄNGER, JJ.

Levinson & Levinson, for appellant.

Edwin M. Otterbourg, for respondents.

GILDERSLEEVE, P. J. The plaintiffs sued to recover damages for the failure of the defendant to deliver according to sample a quantity of embroidery. The amount of damages proven upon the trial was the sum of $244.50, and the jury rendered a verdict of the plaintiffs for that amount. After the verdict was announced, the clerk, instead of entering in his docket the sum found due the plaintiffs, recorded therein the sum of $224.50, and on April 7, 1907, judgment for that amount was rendered in favor of the plaintiffs. From that judgment the defendant appealed by notice of appeal dated April 20, 1907. Subsequently, and upon May 16, 1907, an order was made, upon notice to the defendant, amending the docket of the judgment by making the same read $244.50, instead of $224.50, and also directing that the defendant file and serve a new notice of appeal and a new undertaking. The defendant by notice of appeal dated June 1, 1907, appealed from the order so amending the docket.

The court had power to amend and correct the judgment under the provisions of section 254 of the Municipal Court act (Laws 1902, p. 1563, c. 580). Although the motion to amend was not argued before nor disposed of by the justice who tried the case, it does not appear that any objection was made thereto upon that ground; nor does the record disclose that any objection was urged that said motion was not made within the time required by said section 254 of the Municipal Court act, either by opposing affidavits or otherwise; neither is it urged in appellant's brief that the motion was not made before the proper justice or within the proper time. Any such objection is therefore waived. Scharmann & Sons v. Bard, 60 App. Div. 449, 69 N. Y. Supp. 1033; Fallon v. Crocicchia, 52 Misc. Rep. 503, 102 N. Y. Supp. 541. The amendment of the docket, by the order aforesaid, necessarily amended the judgment, and from the judgment so amended and corrected no appeal appears to have been taken. It may be said that the order was too broad, as the court below could not direct the giving of a new notice of appeal, as it rested with the defendant to determine whether or not he would appeal from the judgment as finally rendered, and, if such an appeal was taken, a new undertaking would necessarily follow if a stay of execution was desired.

Order modified, by striking therefrom the provision requiring the defendant to file a new notice of appeal and file and serve a new undertaking, and, as so modified, affirmed, with costs. Appeal from the judgment dismissed.

(56 Misc. Rep. 140.)

MORETTE v. BOSTWICK.

(Supreme Court, Trial Term, New York County. October, 1907.) 1. JUDGMENT-RES JUDICATA-PARTIES BOUND.

A judgment by default is conclusive between the parties, and binds an indemnitor who had notice of the action, with opportunity to defend. [Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1224]

2. SAME.

At the time of the execution of a deed with general covenants the grantor was living apart from his wife under a valid separation agree ment, and on delivery of the deed the grantee received a release from the wife of her dower, together with a release executed by the trustee created under the separation agreement. A subsequent grantee, not knowing of the release under the separation agreement, found that there was an outstanding dower right claim in favor of the original grantor's wife, which he purchased, and sued the original grantee to recover the amount paid therefor and counsel fees. Held that, on failure of the latter to defend, his grantee could recover against the original grantor, who had knowledge of the action, the amount of the judgment recovered with costs. [Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1224.] Action by Joseph Morette against James A. Bostwick. Judgment for plaintiff.

James P. Davenport, for plaintiff.

Thompson, Vanderpoel & Freedman (Fredk. Thompson, of counsel), for defendant.

ERLANGER, J. This action was tried before me without a jury; the parties having stipulated that all questions of law and fact be determined by me. Judgment is demanded against the defendant upon the following facts: On August 7, 1885, the defendant by deed containing the usual covenants and warranty of title conveyed to the plaintiff in fee the premises described in the complaint. It was expressly covenanted that the premises were then free and clear of all incumbrances whatsoever. At the time of the execution of such deed the defendant was living apart from his wife in virtue of an agreement of separation bearing date November 1, 1881. To this agreement one Benoist J. Cox was made trustee for the defendant's wife, and by its terms she released her dower in any real estate then owned by the defendant, including the premises in question. She further obligated herself by said instrument to execute a release of her right to dower to her said trustee, and the latter agreed to execute such release of dower as might be required. Contemporaneous with the execution of the articles of separation the defendant and his wife executed to said trustee a release of dower in the premises in question, and at the time of the delivery to the plaintiff of his deed he received the release of dower last mentioned, together with one executed by said trustee, and all these documents were together recorded in the office of the register of this county. On February 1, 1889, plaintiff, by deed containing the same covenants as were specified in the deed to him, conveyed the premises to one Alexander Lyle; and the last-named grantee, in March, 1890, conveyed the premises to his wife, Eliza Sidney Lyle. In January, 1905, Mrs. Lyle died; and by her will, which was admitted to probate, she devised the said premises to her husband, said Alexander Lyle, as trustee for the purposes therein mentioned. Subsequently it was attempted by Lyle to continue a mortgage for $14,500, held by the New York Life Insurance & Trust Company, and that company notified Lyle that there was a defect in the title, in that there was an outstanding dower right in favor of defendant's wife, who was then and is now living. The attorneys for the defendant were

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communicated with on the subject, but apparently without satisfactory results. The insurance company claimed that the two releases of dower, executed, respectively, by the defendant's wife to Cox, her trustee, and the one by the latter to the plaintiff, were ineffectual to legally extinguish such dower right; and it insisted on calling in the loan unless this alleged cloud upon the property was at once removed. Thereupon, to protect the title, Mr. Lyle caused negotiations to be opened with the defendant's wife, and $1,000 was paid to her (although the actuarial value of the right was but $300), for which sum she executed a document releasing her alleged right to dower in the property. In addition to this amount, $125 was paid to counsel for his services in procuring such release. To recover these two sums Lyle, in October, 1905, brought an action in this court against the plaintiff, to which an answer was interposed. In December, 1906, a written notice was served upon the defendant herein to defend said action, and it was therein stated that, in the event of his failure so to do, he would be held liable for any damages that might be recovered or paid by reason of his warranty contained in his deed to the plaintiff. This notice was ignored, and subsequently, and on December 17, 1906, judgment was rendered in said action for $1,354.60, which plaintiff paid, less $30. In addition to paying $1,324.60, plaintiff contends that he was subjected to the expense of $50 for attorney's fees in said lastnamed action, and the sum of $1,374.60 is now sought to be recovered from the defendant.

For his defense the defendant relies upon the two releases of dower referred to above, which it is claimed were known both to plaintiff and to Lyle; and, further, it is alleged in the answer that it was known to both of them that the right of dower of the defendant's wife had been released, and that she could not demand the payment of the sum of $1,000, or any other sum, as and for a release of her pretended inchoate right of dower. The answer also alleges that on April 25, 1890, the defendant procured a divorce from his wife in the state of Texas dissolving said marriage; that in such action the wife was personally served and voluntarily appeared; and that the decree so granted extinguished the right of dower in said premises.

In my view of the case, none of the defenses is available in this action. The divorce was granted for cruel and inhuman treatment; and, under the laws of our state, the right to dower is not barred by such a decree. Van Cleaf v. Burns, 133 N. Y. 540, 30 N. E. 661, 15 L. R. A. 542. It may be that the dower right was extinguished by the articles of separation, whereby a pecuniary provision in lieu of dower was made and accepted by her (Rev. St. [1st Ed.] pt. 2, c. 1, tit. 3, § 12; Witthaus v. Schack, 105 N. Y. 332, 11 N. E. 619), the evidence establishing that more than one-half of the husband's estate was conveyed to her; and the long period of time which elapsed since the execution of the deed of separation, without objection on her part, may be held to have been an election by her to accept the pecuniary provision in her favor (Jones v. Fleming, 104 N. Y. 432, 10 N. E. 693). The difficulty, however, with the defendant's position, is that, in an action brought in this court, and referred to above, judgment was entered against the plaintiff in favor of his grantee (Lyle), but not before notice of the pend