except the first payment, and sets up as a defense that the parties had an open mutual running account, and that any payments made at any time by plaintiffs were made upon said account, and are applicable thereto when adjusted between the parties; that the payments were not made through any mistake of fact, but were made with full knowledge and voluntarily, and that the account is to be adjusted in an action in Germany or Switzerland, the defendants doing business in St. Gall, in Switzerland, and the plaintiffs doing business in Barmen, in Germany, having a branch house in New York; and that their account is adjusted between them in Europe. The answer did not allege that anything would be found due to defendants upon the accounting, nor did it contain any set-off or counterclaim against the sum demanded in the complaint. The issue presented by the pleadings was, in effect, whether the plaintiffs had paid the money claimed by mistake, and whether they were indebted to the defendants in any sum to which such payment could be applied. It appeared on the trial that the allegation of the complaint of two payments for the same invoice of goods, the last payment being made by mistake, was true; but it also appeared that plaintiffs thereafter, at the suggestion of defendants, allowed them to keep the remittance, and place it to plaintiffs' credit against later invoices. Upon this fact being conceded, defendants claimed the right to a dismissal of the complaint, on the ground that the cause of action therein set forth was for money paid by mistake, whereas it appeared that the sum claimed was subsequently retained by defendants by agreement.

While

The motion to dismiss the complaint was properly denied. there was an allegation that the money claimed was originally paid by mistake, the subsequent allegation that the defendants retained it without right, because plaintiffs were not indebted to them, made the action substantially for money had and received; and the denials of the answer presented the issue which defendants claimed the right to try, and which was in fact tried in the action, viz. the right of defendants to retain and apply the amount in suit upon later invoices shipped to plaintiffs. The evidence upon this point disclosed that the defendants were holding the money to reimburse them for damages sustained through the refusal of plaintiffs to receive such later invoices; plaintiffs rejecting the goods on the ground that deliveries were made after dates specified in the contracts, and defendants claiming that plaintiffs had waived the default by receiving the belated deliveries without objection. There was a question for the jury, and, had the verdict disposed only of that contention, it might not have been disturbed.

But the plaintiffs insisted upon another and untenable claim, and procured a ruling thereon in their favor, which defeats the present recovery. It appears that there was a third invoice of goods, which defendants delivered and plaintiffs received in August, amounting. to $911.80, upon which plaintiffs claimed that the moneys in question-5,208.55 francs-should have been credited by defendants. Defendants refused to so credit, and, having assigned the claim to their New York agent, he sued and recovered upon it against the plaintiffs, who did not offset or counterclaim the 5,208.55 francs,

but paid the judgment. The refusal of defendants to credit the amount on that indebtedness was urged on the trial of this action as a breach of the agreement by which they were to place that sum to plaintiffs' credit against later invoices; and it was claimed that such breach authorized plaintiffs to sue for the recovery of the 5,208.55 francs as wrongfully withheld. In that view of their right the trial judge concurred, and instructed the jury, at their request, as follows:

"Fifteenth. If the jury find that plaintiffs were indebted to the defendants in the sum of $911.80, or thereabouts, for the bill of silk handkerchiefs ordered in June, and at the time of such indebtedness, and when it became due, the defendants were holding this money in question as plaintiffs' money, and the plaintiffs were entitled to deduct such sum from the amount held by the defendants, and the defendants, nevertheless, refused to apply it to the payment of this bill for silk handkerchiefs, then the jury must find the verdict for the plaintiffs, without taking into consideration any later shipments."

Under this instruction the jury were at liberty to find that defendants ought to have credited the overpayment on the bill of $911.80, and, if they so found, were directed that they must render a verdict for the plaintiffs, notwithstanding any indebtedness of plaintiffs for later shipments. This was a complete disregard by plaintiffs of their own demand in the complaint, which was based upon the absence of any indebtedness whatever from plaintiffs to defendants. No claim was made in the complaint for the return of the money on the ground of a contract to apply it upon a specific indebtedness and a breach of such contract; but the issue tendered was that they were not indebted in any sum before the commencement of the action, and, under that pleading, plaintiffs could not succeed if any indebtedness greater than their claim existed in favor of defendants. For the erroneous instruction, the judgment must be reversed, and a new trial ordered.

As objection to plaintiffs' recovery was also made on the ground that the court had no jurisdiction of the action or of the defendants, it is proper to dispose of that contention on this appeal. We, therefore, say that, whatever merit there might have been in the objections to the jurisdiction of the court, they could not be consid ered, because not raised by the answer. The jurisdiction of the court must always be presumed, and, where defendant appears, the want of jurisdiction by reason of the nonexistence of any jurisdictional fact is waived by the appearance, unless it is pleaded in defense. Code, § 266. In this case there was a general appearance by defendants, and the answer does not plead want of jurisdiction. Popfinger v. Yutte, 102 N. Y. 38-43, 6 N. E. 259; Pease v. Railroad Co., 10 Daly, 459. Judgment reversed, and new trial ordered; costs to abide event. All concur.

(12 Misc. Rep. 426.)

MEAGHER v. CAMPBELL et al.

(Common Pleas of New York City and County, General Term. May 6, 1895.) ATTACHMENT-PROPERTY SUBJECT TO-MONEY.

The proceeds of property which has been sold for the owner are not subject to attachment against him while they remain in the hands of the auctioneer who made the sale, as the owner's right to such proceeds is a mere chose in action.

Appeal from city court, general term.

Action by Ellen Meagher, as assignee of Lizzie Burke, against John W. Campbell and another, to recover the proceeds of property belonging to the assignor, sold by the defendants as auctioneers, and attached while in their possession for a debt of the assignor. From a judgment of the city court (31 N. Y. Supp. 998) affirming a judg ment entered on a verdict for plaintiff, defendants appeal. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.

George W. McAdam, for appellants.

Jeroloman & Arrowsmith, for respondent.

DALY, C. J. This case was properly disposed of by the city court in directing a verdict for the plaintiff and affirming the judg ment thereon. The action was brought to recover a balance of money due from an auctioneer to the plaintiff's assignor for the proceeds of the sale of the latter's household property. The defense is that the money was attached by a marshal under process against the assignor prior to the assignment, but no valid levy was proved, for the reason that the money attached was not the property of the assignor, not having been paid over to her, nor placed under her control, before or at the time of the levy. The evidence on the part of the defendant is that at the time the attachment paper was served upon him he had the money (proceeds of the sale of the assignor's chattels) in his possession, and showed it to the marshal who attached; the marshal swearing that the defendant pulled out a roll of bills, but how much there was he did not know. The defendant states that he got the portion of the proceeds which he paid to the assignor ($186) out of his safe, and left the other $145 there, but this was after the levy. When the attachment was levied, the defendant gave a certificate to the marshal, and held the money for him, replacing it in his safe. The whole evidence shows that before any part of the proceeds of sale were paid over to the plaintiff's assignor, or placed under her control, the defendant set apart $145, and the marshal attached it, and left it with the defendant as receiptor. As the money was not in the possession nor under the control of the debtor in the attachment, it was not the subject of a levy. Crock. Sher. 451. The fact that the auctioneer counted it out, and set it apart as part of the proceeds of the sale, and as money of said debtor, did not subject it to levy. A levy upon money collected by and in the hands of an officer on execution is not a levy upon the goods and chattels of the persons for whom it was collected; because the identical pieces of money collected are not necessarily to be paid over to him. The money is not strictly his till actually paid over. Until that be done, his right is a chose in action. Muscott v. Woolworth, 14 How. Pr. 477. A sheriff having money in coin in his hands, collected upon an execution in favor of a plaintiff, cannot levy upon it to satisfy an execution in his hands against such plaintiff. Baker v. Kenworthy, 41 N. Y. 216. Where surrogate by decree directed one coexecutor to pay a certain sum to another, and the money was put on the table of the

surrogate, and a constable levied upon it under attachment, the levy was held bad, as the money did not vest specifically in the debtor until paid over to him or his authorized agent. Dubois v. Dubois, 6 Cow. 494. Where a banker voluntarily and without authority from a depositor counted out money in bank bills and specie, and handed it to the sheriff, who had an execution against the depositor, under which he levied upon the money, and it was afterwards put in a wrapper, with an indorsement of a memorandum of the levy upon it, and put in the vault until the sheriff called and took it away, it was held neither a levy nor a payment. It was not a levy because the money thus separated by the banker from the contents of the vault was his property, and not that of the defendant in the execution, and was not liable to levy under process against the latter. Carroll v. Cone, 40 Barb. 220. Gold and silver coin collected by an attorney at law on a claim due his client cannot be attached in the ordinary way in his hands as the property of his client. His duty to account and pay over is a chose in action, which was not attached by taking the coin in which the debtor had paid the attorney. No property in that specific coin vested in the principal by that payment, unless it was put into his possession by being paid to him; and until it was it did not become his property. The attorney could maintain an action for conversion against the sheriff for the money attached and taken by him. Maxwell v. McGee, 12 Cush. 137.

In the present case it is clear from the authorities cited that the money upon which the marshal levied was the money of the auctioneer, and not of the owner of the goods from the sale of which such money had been realized. Had it been attached against his will, the auctioneer could have maintained conversion for it against the officer. Until defendant had paid it over to the plaintiff's assignor, or placed it under her control and disposition, it remained his property, and was not subject to levy on attachment against her. If the marshal had the right to attach a chose in action,i. e. the debt of the auctioneer to his customer,-such attachment was not effected by levying upon the cash proceeds of the sale. The judgment and order must be affirmed. All concur.

(12 Misc. Rep. 412.)

MARKOWITZ v. DRY DOCK, E. B. & B. R. CO. (Common Pleas of New York City and County, General Term. January, 1895.) 1. NEGLIGENCE-EVIDENCE-CHANGE MADE AFTER ACCIDENT.

In an action for personal injuries caused by the snowbank along defendant's street-car track, evidence that defendant removed the snow after the accident is inadmissible. Giegerich, J., dissenting, on the ground that the evidence was admissible for the purpose of showing the exercise of authority or control by defendant over the place where the

snow was.

2. SAME-PROOF OF AGE-RECORD of Board oF HEALTH.

Under Consolidation Act (Laws 1882, c. 410), § 621, making the record of the board of health presumptive evidence in any judicial proceeding of the facts stated therein, the certificate of a coroner made in com

pliance with section 604 of said consolidation act, which requires a coroner who holds an inquest to file with the health department a certificate showing, among other things, the age of decedent as nearly as can be ascertained, is admissible as evidence of decedent's age. Per Giegerich, J.

Appeal from trial term.

Action by Herman Markowitz, as administrator of Henry Friedman, deceased, against the Dry Dock, East Broadway & Battery Railroad Company for the death of plaintiff's intestate. From a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

JJ.

Argued before BOOKSTAVER, BISCHOFF, and GIEGERICH,

John M. Scribner, for appellant.
Aaron Kahn, for respondent.

GIEGERICH, J.

The supplemental complaint, among other things, alleges that the tracks of the defendant, among other places, extended and ran over and along Grand street, between Goerck and Mangin streets, in the city of New York; that it was the duty of the defendant to keep that part of said street adjacent to and along which said track ran and extended free from ice, snow, and accumulations and obstructions of every kind and nature; "that on or about January 25, 1891, and for some time previous thereto, the defendant unlawfully, wrongfully, negligently, and carelessly placed, put, and accumulated snow, ice, and mud along and near said track in said Grand street, opposite Goerck street, and unlawfully, wrongfully, and carelessly permitted the same to remain there until said accumulations had formed and been frozen into ice banks, so much so that the same became an obstruction to the public in lawfully traveling across said street;" that on said day one Henry Friedman was carefully traveling across said street opposite said Goerck street, and, in order to do so, he was necessarily compelled to cross and pass over said track of the defendant and said bank of snow, ice, and mud, and while so crossing the said track along said public highway, and as he reached said track, a car of the defendant rapidly approached the place where said Henry Friedman was passing, and, in consequence of the negligence of the driver thereof, threw him down upon the ground, and passed over his right leg, and he was thereby so injured as to cause his death. The supplemental complaint also alleges the appointment of Wilhelmina Friedman as administratrix of the goods, chattels, and credits of her deceased husband; her death, and the appointment of the plaintiff as administrator de bonis non of said Henry Friedman, deceased; and his substitution as plaintiff in the place and stead of said Wilhelmina Friedman, deceased. The answer contains a specific denial of each allegation of the supplemental complaint, except the incorporation of the defendant, which is admitted. The testimony adduced on the part of the plaintiff tended to show that the defendant helped to create the snowbank which prevented the escape of plaintiff's