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judgment be amended by striking out all provisions in respect to costs. The motion was denied, and the defendant appeals.

Subdivision 5 of section 3228 of the Code provides that:

"In all actions hereafter brought in the County Court of Kings county, which could have been brought, except for the amount claimed therein, in the Municipal Court of the city of New York, and in which the defendant shall have been personally served with process within the city of New York, the plaintiff shall recover no costs or disbursements unless he shall recover two hundred and fifty dollars or more."

This action was to recover damages for loss of the plaintiff's wife's services because of personal injury she received by reason of the negli gence of the defendant. The Municipal Court had jurisdiction of this case. Laws 1902, p. 1489, c. 580, § 1, subd. 14; McVeigh v. Gentry. 72 App. Div. 598, 76 N. Y. Supp. 535. Inferentially it appears that the summons was served upon the defendant within the city of New York. and the respondent submits a brief which presents the questions raised by this appeal upon the theory that such service was made. The plaintiff seeks to sustain the order upon the sole ground that the defendant, having appeared before the clerk upon the taxation, and having made no objection to the taxation of costs generally, cannot thereafter be heard to complain.

The general rule is that a motion for retaxation is in the nature of an appeal from the action of the clerk, and the court, upon a motion for retaxation, will not consider any items save those to which objection was made before the clerk. Lyman v. Young Men's Cosmopolitan Club, 38 App. Div. 220, 222, 56 N. Y. Supp. 712; Comly v. Mayor, 1 Civ. Proc. R. 306, 317; Varnum v. Wheeler, 9 Civ. Proc. R. 421. But in these actions, as in others which might be cited, the objection was made to individual items in a bill of costs, where the right to tax costs generally was undenied. In this case the plaintiff was deprived of the right to tax any costs by reason of the explicit provisions of subdivision 5 of section 3228 of the Code. The question was not as to the amount of any particular items, or the propriety of the items themselves, upon which the clerk ordinarily has the power to pass in the first instance, but to the very right of the clerk to tax costs at all. The clerk had no such right, and it was hardly necessary for the defendant, in order to save the point, to object to the clerk's doing what he had no authority to do. We do not think that the defendant is concluded by his failure to object to the total invalidity of the bill of costs before the clerk, and that the merits of the plaintiff's right to costs should have been determined upon the motion for retaxation, irrespective of its failure to object before the clerk. See Hill v. Kann. 50 Misc. Rep. 360, 362, 98 N. Y. Supp. 682; De Graff v. Hoyt, 4 Thomp. & C. 348, 351.

The order should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

BROWNELL v. SNYDER.

(Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. JUDGMENT-COLLATERAL ATTACK-SURETY ON APPEAL BOND.

A judgment may be collaterally attacked for fraud by the surety on the bond on appeal to the court in which the judgment was rendered. 2. APPEAL-ACTION ON BOND-FRAUD-SUFFICIENCY OF EVIDENCE.

Evidence in an action against the surety on an appeal bond held sufficient to show that the judgment by default on appeal was obtained by collusion of the parties to the action in which it was rendered, for the purpose of charging the surety.

3. SAME-COMPETENCY OF EVIDENCE.

As bearing on the charge of the surety on an appeal bond that the judgment by default on appeal for a larger sum than obtained below was due to collusion of the parties to charge the surety with the full amount of the bond, it is competent to show that between the first and second trial the defendant in such action went to live with the plaintiff, having sufficient property with which to pay the original judgment, and that he turned it over to plaintiff for board thereafter furnished.

Cochrane, J., dissenting.

Appeal from Fulton County Court.

Action by William Brownell against Charles M. Snyder. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

The action is upon a bond on appeal for $200. It was in the usual form, and the defendant, Charles M. Snyder, was the surety thereon. The plaintiff, Brownell, brought a suit in a Justice's Court for a board bill against his father-in-law, John M. Snyder. In that suit he recovered a judgment against John M. for $50 damages, besides costs. John M. then appealed to the County Court for a new trial, and on that appeal the bond in question was given. On the new trial in the County Court the jury rendered a verdict for the plaintiff for $196.79, and a judgment for that amount, besides costs, was entered. An execution was issued thereon and returned wholly unsatisfied. This action on the bond followed. The defense was that after taking the appeal from the Justice's Court, and before the new trial in the County Court, the plaintiff and John M. Snyder had conspired together to beat this defendant, Charles M. Snyder, on his undertaking, by suppressing evidence on the trial in the County Court and by disposing of property belonging to John M. Snyder sufficient to pay the execution. At the close of the evidence on the trial the plaintiff moved for a verdict upon two grounds: First, that the allegations of fraud in the answer did not constitute a defense to the cause of action set out in the complaint; and, second, that what the defendant had proved or undertaken to prove upon the trial was not sufficient. The court thereupon directed a verdict in favor of the plaintiff for $200, the amount of the undertaking, and from the judgment entered thereon the defendant has appealed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Clark L. Jordon, for appellant.
J. Keck, for respondent.

CHESTER, J. The answer, in alleging a conspiracy between this plaintiff and John M. Snyder to suffer judgment to be obtained against said Snyder, to the end that this defendant, who was surety for said Snyder upon his undertaking on appeal, might be forced to pay the

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amount of such undertaking, seems to set out a good defense to an action brought to recover such amount. The liability of this defendant upon the undertaking in question is based upon the judgment heretofore obtained against said John M. Snyder, and a judgment ordinarily cannot be questioned in a collateral proceeding. But the rule as to collateral attack is subject to the exception that fraud or collusion in obtaining the judgment may always be shown collaterally by strangers to the judgment who are injured thereby. "A stranger may collaterally impeach a judgment which stands in his way, by plea and proof of fraud in obtaining it, because this is his only means of availing himself of the fraud." Am. & Eng. Enc. of Law (2d Ed.) vol. 17, p. 849. And such has always been the rule in this state. In the case of bonds for costs, etc., it is said in an early decision (Douglass v. Howland, 24 Wend. 35, 55) that "the surety means to be concluded, always saving the right, as the law must be in every case where a suit is between third persons, to contest the proceeding on the ground of fraudulent collusion, for the purpose of charging the surety." In a later case it is held that "fraud vitiates a judgment, as well as every contract tainted with it," and such fraud may be shown collaterally by sureties. Annett v. Terry, 35 N. Y. 256, 260. "Fraud and imposition invalidate a judgment, as they do all acts, and may be alleged, whenever the party seeks to avail himself of the results of his own fraudulent conduct by setting up the judgment the fruits of his fraud." Mandeville v. Reynolds, 68 N. Y. 528, 543. "In the absence of fraud or collusion between the executor and the legatee, the decree of the surrogate is conclusive upon the sureties. It binds the principal and sureties alike, and cannot be impeached in a collateral proceeding." Scofield v. Churchill et al., 72 N. Y. 565, 570. See, also, Bridgeport Ins. Co. v. Wilson et al., 34 N. Y. 275, 281; Annett v. Terry, 35 N. Y. 256; Conner et al. v. Reeves et al., 103 N. Y. 527, 530, 9 N. E. 439; Chandler v. Thompson, 120 Fed. 940, 941, 57 C. C. A. 230. It accordingly follows that an allegation of conspiracy and collusion in obtaining the judgment in question may properly be pleaded as a defense to an action upon an appeal undertaking given to secure the payment of such fraudulent judgment.

Nor was the trial court justified in holding as matter of law the defendant had failed to make a case for the jury upon the defense of collusion. At the date of the trial between Brownell, this plaintiff, and John M. Snyder, in Justice's Court, John M. Snyder was residing with his son, the defendant, Charles M. Snyder. He contested the action, and judgment was recovered for only $50. Prior to the trial on appeal in County Court John M. Snyder left the defendant's residence and went to live with the plaintiff, Brownell. When the case came on for trial in County Court he did not appear or present any defense. His attorney appeared, but without a client. In County Court judgment was obtained for $196.79 damages, besides a large amount of costs. The declarations of this plaintiff are sworn to, from which the jury might find that he and his father-inlaw had united to make defendant pay a judgment, and as large a

judgment as could be obtained. In this trial the defendant offered proof that at the time John M. Snyder went to live with the plaintiff he had sufficient property with which he could have paid the judgment in Justice's Court, but that such property had been turned over to the plaintiff by John M. Snyder, who was residing with him, for board accruing subsequent to the entry of the judgment in Justice's Court. While this evidence was rejected, it was clearly competent, as bearing upon the charge made by the defendant that the plaintiff and John M. Snyder had colluded for the purpose of charging the defendant with the full amount of this bond. I have no doubt that the evidence was sufficient to authorize the jury to find collusion.

The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except COCHRANE, J., who dissents.

In re QUACKENBUSH.

(Supreme Court, Appellate Division, Second Department. November 22, 1907.) 1. BANKRUPTCY-DISCHARGE JUDGMENTS-DISCHARGE OF RECORD-NOTICE OF

MOTION.

A judgment debtor, whose application for discharge in bankruptcy, on opposition by a creditor, had been refused, filed a second petition in bankruptcy and made a second application for and received a discharge. The creditor was named in the schedule in the second bankruptcy proceedings, but his true residence was not stated, although his name and address appeared in the city directory. The creditor had no personal knowledge of the second bankruptcy proceedings, or the application for a discharge thereunder, or of a subsequent motion to discharge the judgments of record. The notice of motion to discharge was served on one of the attorneys of record for the creditor, but these attorneys ceased to represent the creditor after final judgment, and he was represented in the first bankruptcy proceedings by another attorney, which was known to the debtor. Held that, though the debtor complied with Code Civ. Proc. § 1268, authorizing a bankrupt to apply for the discharge of a judgment of record on notice to the judgment creditor or his attorney of record in the judgment, yet the purpose of the statute was defeated, because no actual notice was given, and that the default on motion to discharge the judgments of record should be opened.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 822.}

2. SAME-VOLUNTARY PROCEEDINGS-NOTICE TO CREDITORS.

Bankr. Act July 1, 1898, c. 541, §§ 7, 58, 30 Stat. 548, 561 [U. S. Comp. St. 1901, pp. 3425, 3444], provide that the bankrupt must file a list of his creditors, showing their residences, if known, and that notice must be sent to the creditors at their respective addresses as they appear in the list of creditors. Held, that where a creditor's address was erroneously given in the list filed, and notice sent to that address, and his true address might easily have been ascertained from the city directory, there was no proper notice given.

3. SAME-DISCHARGE OF JUDGMENTS.

On application under the express provisions of Code Civ. Proc. § 1268, by a judgment debtor who has been discharged in bankruptcy for the discharge of judgments of record, the court is without power to discharge the judgments as to another against whom they were also rendered.

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Appeal from Special Term, Richmond County.

Application by Abraham Quackenbush, a bankrupt, to have certain judgments of Franklin Burt against him discharged of record. Burt having defaulted and an order been entered discharging the judgments of record, Burt moved to set aside such order. From an order denying his motion, he appeals. Order denying motion reversed, and motion granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ.

Stillman F. Kneeland, for appellant.

Allan C. Rowe (James W. Purdy, Jr., on the brief), for respondent.

RICH, J. The facts stated by the appellant are substantially as follows: Appellant recovered judgment for over $5,000 against the respondent, Abraham Quackenbush, and also two other judgments for costs on appeal to the Appellate Division and the Court of Appeals. Subsequently the respondent went into bankruptcy, and his application for discharge was opposed by the appellant and refused by the United States court in bankruptcy. After such denial by the bankruptcy court the bankrupt filed a second petition upon the same debts, and thereafter made a second application for and received a discharge by the same court. It further appeared that the appellant was named in the schedules as a creditor in the second bankruptcy proceedings, but that his true residence was not stated in the schedules; it being stated as No. 9 Ferry street, New York City, while his residence was at St. George, S. I., where he had lived for ten years prior thereto, except that for a small portion of that period he lived at 42 West Ninety-Sixth street, borough of Manhattan, city of New York, and his place of business at the time the second petition in bankruptcy was filed, and at the time of the making of the schedules therein, was 81 Fulton street, borough of Manhattan, and that his name and address appeared in the city directory. The appellant had no personal knowledge of the second proceedings in bankruptcy, or of the application for a discharge thereunder, or of the subsequent motion to discharge these judgments. It appeared that notice of the motion to discharge the judgments was served upon one of the attorneys of record for appellant; but these attorneys ceased to represent appellant after the final judgment was entered, and he was represented in the first bankruptcy proceedings by another attorney in no wise connected with the attorneys of record, and it is not pretended that notice was given him, or that appellant was ever informed of the service of the notice upon his former attorneys. Upon the contrary, it appears affirmatively that he was not. Respondent knew that the appellant was no longer represented by the original attorneys of record, and that another attorney had successfully resisted his previous application for discharge in bankruptcy. No notice was given to the substituted attorney. This might easily have been done. While the respondent complied with the provisions of Code, §§ 1268, yet the purpose of the statute was defeated because no actual notice was given. I think, therefore, that under