Supreme Court, January 1899. [Vol. 26. have theretofore accrued, but have not yet come to the hands of the owner of the equity of redemption, and apply them to the payment of the mortgage debt; still, the court has no power to order rents, already collected and in possession of the owner, to be paid over and thus applied The lien of the mortgagee, or of the receiver, upon the rents dates only from the appointment of the receiver; and the right of the receiver to collect rents extends only to such as are unpaid at the time of his appointment. Wyckoff v. Scofield, supra. In the present case, the arrangement between the owner of the equity of redemption, Zoeller, and Marks was entered into a considerable time before the appointment of the receiver, and before the foreclosure suit was commenced. The lease to May 1st was part of the purchase price on the sale of the property from Marks to Zoeller, and I can find no authority for depriving Marks of his rights thereto. It is not claimed that there was any fraud or collusion between Marks and Zoeller, and there is no reason for not believing that it was a plain, straightforward and bona fide The receiver cannot turn Marks out for nonpayment of rent that had been paid, without fraud or collusion, before the appointment of the receiver. See Sea Insurance Co. v. Stebbins, 8 Paige, 565; Argall v. Pitts, 78 N. Y. 239; Rider v. Bagley, 84 id. 461; Wyckoff v. Scofield, 98 id. 475. contract. This motion must be denied, with $10 costs. Motion denied, with $10 costs MARTIN MATTHEWS, Plaintiff, v. THE WILLIAM FRANK BREWING Co., Defendant. Duress (Supreme Court, New York Trial Term, January, 1899.) Payment "under protest" by a saloon keeper of part of a brewer's tax. Where a saloon keeper, fearing that he might have difficulty in procuring beer from other brewers, pays "under protest", upon beer furnished him by a corporation, one-half of the tax imposed upon brewers by the War Revenue Act which went into effect in June 1898, ne cannot recover it, upon the ground of duress, from the corporation which demanded of and received from him the illegal payment. Misc.] Supreme Court, January, 1899. ACTION to recover back money obtained by alleged duress. Wm. H. Mundy, for plaintiff. Venino & Sichel, for defendant. MCADAM, J. Taking the most favorable view of the plaintiff's case, and assuming for present purposes that the understanding had December 16, 1897, amounted to a contract by the defendant to supply the plaintiff all the beer required in his saloon business, for one year thereafter, at $8 a barrel, we will next inquire what legal results follow. In June, 1898, the War Revenue Act became a law, and by it, a tax of $2 a barrel was imposed on all beer, etc., brewed and sold, whereupon the defendant, a brewing corporation, refused to deliver any more beer under the contract, unless the plaintiff paid $1 a barrel of the war tax in addition to the contract price. The plaintiff, fearing that if he declined to comply with this demand, there might be difficulty getting beer from other brewers, paid the defendant the war tax exacted until the payments therefor amounted to $335.50, saying at the time of each payment that it was " under protest.' The present action is to recover back this sum on the theory that it was wrongfully exacted. The war tax was imposed upon the brewer and he was obliged to pay it to the government, and neither the tax nor the payment of it by the defendant furnished the brewing company the slightest excuse for not performing its contract with the plaintiff. If a party contracts to convey realty, and before the time appointed for delivering the deed a stamp act becomes operative, the vendor is certainly obliged to affix the revenue stamps required to make the transfer effectual. The brewing company in this case is charged with substantially the same obligation as the vendor in that one. The plaintiff had the right to insist upon the performance of the contract, and if the defendant refused to perform, the plaintiff's remedy was an action at law to recover damages for the breach. But the plaintiff did not adopt this course, but, with knowledge of the facts as well as the law, acquiesced in the defendant's demand made as of right, by paying the war tax demanded True, the plaintiff said he made the payments under protest, but this did not make them compulsory, and they cannot now be recovered back. warrant such recovery, there must be compulsion, actual, present, potential. In the absence of such compulsion, a mere * * * "To Supreme Court, January 1899. [Vol. 26. protest is not sufficient." 18 Am. & Eng. Ency. of Law, 214. The business necessities of the plaintiff do not alter the voluntary character of the payment. 6 id. 71. Nor does fear of the other brewers affect it. Quincey v. White, 63 N. Y. 370. Where a party voluntarily pays an illegal claim, there being no duress of person or of goods, or fraud on the part of the claimant, the fact that he made the payment under protest does not preserve to him the right of subsequently contesting the validity of the claim; but he is concluded by the payment (Flower v. Lance, 59 N. Y. 603; Quincey v. White, supra; Cox v. Mayor, 103 N. Y. 519; Phelps v. Mayor, 112 id. 216; Starr v. Starr, 54 Hun, at p. 304; affirmed, 132 N. Y. 154; Emmons v. Scudder, 115 Mass. 367; Regan v. Baldwin, 126 id. 485; s. c., 30 Am. Rep. 689. In R. R. Co. v. Commissioners, 98 U. S. 541, which was a suit to recover back taxes which the company had paid, the court declared it to be a settled rule of law that "where a party pays an illegal demand with full knowledge of all the facts which render such a demand illegal, without immediate or urgent necessity therefor, or to prevent an immediate seizure of his person or his property, such payment must be deemed voluntary, and cannot be recovered back, and the fact that the party files a written protest does not make the payment involuntary." See also Vanderbeck v. Mayor, 122 N. Y. 285; Tripler v. Mayor, 125 id. 617; Wood v. Mayor, 25 App. Div. 577; Dill. Mun. Corps. (2 ed.), § 751. There is no magical force in the term "under protest." It does not establish compulsion, and implies nothing more than that the act done is contrary to the desire of the party making the protest. Under the pleadings and the proofs, the payment was not compulsory in any such sense as to give rise to a cause of action to recover the money back as if it had been received to and for the plaintiff's It follows that the complaint must be dismissed. use. Complaint dismissed. Misc.] Supreme Court, January, 1899. GEORGE W. GALINGER, Plaintiff, v. HERMAN ENGELHARDT et al., Defendants. (Supreme Court, New York Trial Term, January, 1899.) 1. Action against sureties in the Court of Appeals entry of its judgment need not be given. No notice of the entry of a judgment of the Court of Appeals, dismissing an appeal for the failure of the appellant to give a new undertaking on such appeal, directed by that court to be executed, need be given to the sureties on the undertaking, already given on such appeal, as a condition precedent to an action thereon against them, as upon such a dismissal the defeated litigant and his sureties must pay, or the creditors may enforce all his legal remedies. 2. Same "Costs" under Code Civ. Pro., § 1326. The term " costs", as used in section 1326 of the Code of Civil Procedure relative to undertakings on an appeal to the Court of Appeals, includes only such costs as are awarded in that court. 3. Same Liability, where the Court of Appeals orders a new undertaking on appeal. Where the respondent, proceeding under section 1308 of the Code of Civil Procedure, procures of the Court of Appeals an order directing the appellant to give a new undertaking on such appeal and, failing this, that his appeal be dismissed and the appeal is dismissed for such failure, the sureties on the undertaking, already given upon the appeal to the Court of Appeals, are not liable for the payment of the judgment awarded the respondent in the courts below, although said undertaking embodied the requirements of section 1326 and also those of section 1327 of said Code. ACTION against sureties on an undertaking given on an appeal to the Court of Appeals. Geo. W. Galinger, for plaintiff. W. Sutphen, for defendants. MCADAM, J. The action is against the defendants as sureties upon an undertaking given on an appeal to the Court of Appeals 4 Supreme Court, January 1899. [Vol. 26. from a judgment recovered against one Hammerstein, May 24, 1897, for $4,139.52, affirmed by the Appellate Division, November 24, 1897, with $90 costs. Notice to the sureties of the entry of the judgment was not necessary as a condition precedent to charging the sureties as such. The only provision requiring notice to sureties is that contained in section 1309 of the Code, which does not apply to appeals to the Court of Appeals, for the obvious reason that said court is the tribunal of last resort, and when that court affirms a judgment or dismisses an appeal, there is no alternative for the defeated litigant and his sureties; they must pay, and if they fail to do so, the creditor is free to enforce all his legal remedies. Weil v. Kempf, 12 Civ. Pro. 379; Johnstone v. Connor, 18 id. 19; Sterne v. Talbott, 89 Hun, 368. This disposes of the first defense and carries us to the second. It appears that after the undertaking had been approved, to-wit, on June 24, 1898, the Court of Appeals required Hammerstein, the appellant, to give a new undertaking within ten days thereafter, and on his failure to furnish the same, that court, on July 20, 1898, dismissed the appeal, and judgment was thereupon entered on the remittitur for $34 costs. The sureties claim that, in consequence of the order requiring a new undertaking, followed by the order dismissing the appeal, because it was not given, they were discharged from all liability. Appeals to the Court of Appeals are regulated by section 1326 of the Code, which provides that, " To render a notice of apeffectual for any purpose peal * * * * * * the appellant must give a written undertaking, to the effect, that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title." The term costs, as used in this section, refers to the costs incurred in the Court of Appeals, and the term damages to the 10 per centum upon the amount of the judgment which that court may award upon affirmance thereof. Code, § 3251, subd. 5. So, that a defeated litigant may, in a proper case, appeal as of right to the Court of Appeals, on giving security only for the costs and damages which that court may award, not exceeding $500. The costs in the Court of Appeals in this instance amount to $34, and the liability of the sureties on that portion of the undertaking required by |