payment to the defendant of the sum of $794.02. This judgment was modified by the appellate division by deducting therefrom the sum of $50 for services not rendered in the action which resulted in this plaintiff's recovery of the land, and, as thus modified, it affirmed the judgment herein.

Charles D. Ridgway, for appellant.

George Edwin Joseph, for respondent.

WERNER, J. (after stafing the facts). In our view of this case, it is unnecessary to determine whether the defendant had either a general equitable lien or a specific attorney's lien upon the lands described in the complaint. Any lien he may have had was expressly waived by his declaration of trust, in which he says, "I hold said property for the purposes expressed in said judgment, and in no other way," and by the explicit provisions of which he binds himself "to convey the same to such person as said Stephen A. West may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West." The learned appellate division took the view that these words could not be construed as a waiver of defendant's lien, and should be held to mean nothing more than that he took the title as the nominee of the plaintiff, subject to the terms of the judgment in the suit of West v. Bush. We find ourselves unable to concur in this view. It is to be remembered that the defendant, before he became plaintiff's trustee, had been his attorney in the suit out of which the subject of the trust arose. While sustaining that intimate and confidential relation to the plaintiff, he assumed the trust under which he now holds the property in suit. In assuming this trust, the defendant, with full knowledge of his legal rights, and with presumptive knowledge of the effect of his acts, made a formal and most explicit declaration of trust, in which the statement that he holds the property for the purposes expressed in the judgment therein described is emphasized by the declaration that he holds the same "in no other way." This is followed by the equally unequivocal statement that, upon

the conveyance of said premises to such person as said West may in writing direct, he (the trustee) will "pay over the proceeds of such sale to said Stephen A. West." It is said that any construction of this language which attributes to the defendant an intention to waive his lien is forced and unnatural. We think that any other construction would be repugnant to the plain meaning of the words used. We find it difficult, indeed, to discuss at length a proposition so obvious, and in such exact accord with the principles applicable to the subject of waiver. We think it was error to allow the defendant any sum whatever for his services as attorney, and that his recovery should have been limited to the allowance made to him as trustee, which, for apparent reasons, rests upon an entirely different basis than his compensation as attorney. The judgment of the court below should be modified by deducting therefrom the sum of $150, in addition to the $50 deducted by the appellate division, and as thus modified affirmed, without costs to either party.

All concur, except PARKER, Ch. J.

Judgment accordingly.

Appellate Division.

[Nov

ELSTER v. VIELE et al.

[55 App. Div. 190; 100 St. Rep. 951; 66 Supp. 951.]

(Supreme Court, Appellate Division, Third Department. November 16, 1900.

1. JUSTICES OF THE PEACE JOINT JUDGMENT-JOINT DEFENDANTS. Where, in an action in a justice's court against three defendants who were joint contractors, the judgment does not comply with Code Civ Pro. § 3020, providing that in an action against persons jointly in debted, where only part are served with process, judgment must be entered against all, the judgment entered will be reversed on appeal. 2. SAME

JUDGMENT-AMENDMENT ON APPEAL.

The county court, on appeal from a justice's court has no authority to modify a judgment entered against only the defendants served in an

NOTE. EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW. a. Statutory provisions.

b. Partial affirmance.

c. Modification.

d. New relief.

e. New trial.

1. Manifest injustice.
2. Satisfactory excuse.

The sections of the Code of Civil Procedure which prescribe what relief the county court may grant on appeal, where a new trial is not demanded, are as follows:

a. Statutory provisions.

§ 3063. The appellate court may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact, and where the judgment is contrary to or against the weight of the evidence, the appellate court may, upon its reversal of a judgment, order a new trial before the same justice or before another jus

action against joint contractors by entering it against all the defendants, under Code Civ. Pro. § 3063, providing that the appellate court may reverse or affirm the judgment of the justice, in whole or in part, and as to any or all parties for error of law or fact.

3. APPEAL NOTICE-EFFECT.

Where in an action against joint contractors a part only were served with process, and the judgment, which was erroneously entered only against those served, was amended by the appellate court without authority, the fact that the notice of appeal purported to have been taken by all the defendants does not justify the judgment of the appellate court, since it will be deemed to have been taken simply in behalf of those against whom the judgment was entered.

Appeal from Cortland county court.

Action by Wellington Elster against John J. Viele and Charles L. Viele, impleaded with Miles D. Goodyear. From a judgment for plaintiff, defendants Viele appeal. Reversed.

The action was brought by plaintiff to recover for services rendered the

EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW,-continued.

tice of the same county, to be designated in the order and at the time and place to be specified in the order, and in such a case the costs of the appeal shall be in the discretion of the appellate court.

§ 3064. If the appeal is taken by a defendant, who failed to appear before the justice, either upon the return of the summons, or at the time to which the trial of the action was adjourned; and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default; the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder, and by order direct a new trial, before the same justice, or before another justice of the same county designated in the order, at such a time and place, specified in the order, and upon such terms as it deems proper.

b. Partial affirmance.

When a separate, distinct item is erroneously allowed by a justice of the peace, there being a total failure of evidence to sustain it, and a correct judgment is given for other matters, the county court, on appeal, should affirm the judgment in part and reverse it in part.

Decker v. Hassel, 26 How. Pr. 528.

defendants in the construction of the Peck Memorial Building at Marathon, N. Y., in the years 1894 and 1895. The defendants were joint contractors for the construction of said building. The defendant Goodyear was not served. The defense interposed by defendants Viele was that plaintiff's contract was made with one Lewis G. Viele, and not with the defendants. Upon that issue the plaintiff was successful, and judgment was entered in his favor against the defendants Viele. From that judgment the defendants appealed to the county court. The county court amended that judg ment by making it in form against the defendant Goodyear as well as against the defendants Viele, and as thus amended the judgment was affirmed. From this judgment of the county court an appeal has been taken to this court.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.

William D. Tuttle, for appellants.

Bouton & Champlin, for respondent.

EXTENT OF RELIEF ON APPEAL TO COUNTY COURT ON THE LAW,-continued.

Where a recovery in a justice's court was composed of several items of damages, there being no dispute as to the evidence, and the justice by mistake in adding the items rendered judgment for too great a sum, the county court may, on appeal, reverse the judgment as to the excess and affirm it as to the correct aggregate.

Fields v. Moul, 15 Abb. Pr. 6.

Where two or three independent causes of action are prosecuted in a justice's court, and the judgment is right as to one and erroneous as to the others, which can be distinctly and plainly seen on appeal, the county court has power to reverse as to the erroneous, and affirm as to the correct part of the judgment.

Staats v. Hudson River R. R. Co., 39 Barb. 298.

When the judgment rendered by the justice is for different claims, or is for distinct items or articles of property, separable in their nature, and capable of being separated on the record, both as to identity and value, the county court may reverse in part and affirm as to the residue.

Shaw v. Davis, 55 Barb. 389.

The county court may, on appeal, reverse as to one or more of the defendants and affirm as to the others a joint judgment of a justice's court against several defendants in an action of tort.

Van Slyck v. Snell, 6 Lans. 299.