Misc.] Supreme Court, May, 1902. doubtedly, on an application for an attachment, the moving papers must set forth facts from which a conclusion can be properly drawn that plaintiff has been damaged in an ascertainable sum, where the claim is for unliquidated damages. (See Farquhar v. Wisconsin Condensed Milk Co., 30 Misc. Rep. 270; Story v. Arthur, 35 id. 244). But it appears from the affidavit of A. B. Daniels, to whom plaintiff refers as the source of her information as to the value of the labor and materials, that the reasonable value is the sum named by the plaintiff; and said Daniels sets forth, in sufficient detail, the requisite averments as to such labor and materials and the value thereof. This objection of the defendant cannot be sustained. There is one other alleged defect in the moving papers, according to the claim of defendant's attorney. He points out that under chapter 687, section 15, of the Laws of 1892 (which provides that no foreign corporation, other than a moneyed corporation, doing business in New York, shall maintain an action on any contract, made therein, until it shall have procured from the Secretary of State a certificate, showing that it has complied with the laws governing such corporations), the assignee of a contract of a foreign manufacturing corporation, which has failed to procure such certificate, has no standing in the courts. Mueller v. Wall Rope Co., 53 N. Y. Supp. 255, Lawrence, J. The plaintiff herein is the assignee of the claim of the L. L. Brown Paper Company, a foreign manufacturing corporation. The contract is in the form of a letter, and is dated "New York, October 19, 1897," and is addressed by defendant to the plaintiff's assignor, at Adams, Massachusetts. There is no statement that the said corporation has procured the certificate indicated from the Secretary of State. On the other hand, there is no evidence whatever that would warrant an inference that the said corporation is "doing business in New York." The statute particularly refers to foreign corporations "doing business in New York." In the cases cited by defendant's counsel, it appears affirmatively that the foreign corporation was "doing business in New York." I am of opinion that there is no merit in this objection to the attachment. The motion to vacate the attachment is denied, with ten dollars costs to abide the event. Motion denied, with ten dollars costs to abide event. Supreme Court, May, 1902. [Vol. 38. THEODORE EISING, Plaintiff, v. JOHN J. YOUNG, Defendant. Calendar (Supreme Court, New York Trial Term, May, 1902.) Preference of an action for libel, in the First Department - Code C. P., § 791, subd. 11. The statutory preference on the calendar given an action for libel will not, in the First Judicial Department, be permitted to advance such an action over issues noticed for trial at prior trial terms, and to secure such a result some additional reason must appear. Such an action is, otherwise, only entitled to a preference over other issues of the same term as that for which it is noticed. MOTION for a preference. Jacoby & Dalberg, for motion. Truax & Crandall, opposed. GILDERSLEEVE, J. The plaintiff moves for a preference, under section 791, subdivision 11, of the Code, on the ground that the action is for libel. The moving party relies wholly and solely upon this fact in making the application for a preference. In this county, civil actions, specified in section 791 of the Code, are not entitled, as a matter of right, to be advanced over causes noticed for trial for prior terms. The right to grant a preference over issues noticed for trial for prior Trial Terms rests in the discretion of the court; but some fact, other than that the action is one specified in section 791 of the Code, must be shown to justify the court in preferring the action over such issues. See Morse v. Press Pub. Co., 71 App. Div. 351. No other fact, for the purpose of securing a preference, than that this action is one specified in section 791 of the Code appears in the papers presented on this motion. For the foregoing reason this action cannot have a preference over issues noticed for trial for prior Trial Terms. It may have a preference, however, over the issues noticed for trial at this the May-term of the court. The motion to set this cause down for trial upon the day calendar of preferred causes Misc.] Supreme Court, May, 1902. for May 12, 1902, must be denied. An order, however, may be entered giving the cause a preference over the issues noticed for the present May term, in its regular order. Motion denied. JAMES J. DAVIS, as Trustee, etc., Plaintiff, v. WALTER T. WESTERVELT, et al., Defendants. (Supreme Court, New York Trial Term, May, 1902.) Calendar Preference of an action by a trustee in bankruptcy, in the First Department - Code C. P., § 791, subd. 5. The statutory preference given an action brought by a trustee in bankruptcy as sole plaintiff will not, in the First Judicial Department, be permitted to advance such an action over issues noticed for trial at prior trial terms, and to secure such a result some additional reason must appear. Such an action is, otherwise, only entitled to a preference over other issues of the same term as that for which it is noticed. MOTION for a preference. Boothby & Baldwin, for motion. No appearance in opposition. GILDERSLEEVE, J. This is an application for a preference under section 791, subdivision 5 of the Code. There is no opposition to the motion. The plaintiff, however, relies wholly upon the ground that the sole plaintiff is a trustee in bankruptcy, and gives no other reason for asking the preference than that such a case is preferable under section 791, subdivision 5 of the Code. This is not enough. Some other fact than that the action is one specified in section 791 of the Code must be shown to justify the court in preferring the action over other issues than those of the present term. See Morse v. Press Pub. Co., 71 App. Div. 351. Motion granted giving the cause a preference over the issues noticed for the present May term in its regular order. Motion denied. Supreme Court, May, 1902. [Vol. 38. FREDERICK F. EISEMANN, Plaintiff, v. MICHAEL LAPP, et al., Defendants. (Supreme Court, New York Trial Term, May, 1902.) Grant of real property adversely possessed - L. 1896, ch. 547, § 225. Where a referee, appointed in a valid foreclosure of the rights of all the mortgagors (three of four children to whom their mother had devised the premises equally), purports to convey an unincumbered fee to the purchaser at the sale and the latter thereupon goes into actual possession, claiming under the deed, and so remains and thereafter acts as sole owner, he is entitled to the fee as against a subsequent grantee of the father, of the children, entitled under the statute to a life estate in the share of the fourth child (who had died intestate and unmarried before the mortgages were given) but whose claim to such life estate was not cut off or disclosed except by the mother's will and by the fact that only three of the children had made the mortgages and this because, when the father's deed was delivered to the defendant, the property was in the actual possession of a person claiming under a title adverse to the grantor and the statute (L. 1896, ch. 547, § 225) makes such a deed absolutely void. ACTION for partition. George L. Terry (Charles Strauss, of counsel), for plaintiff. James, Schell & Elkus (John Frankenheimer, A. I. Elkus, of counsel), for defendants. LEVENTRITT, J. This is an action in partition tried before me without a jury. Catherine E. Victory, who died in 1877, devised the premises involved to her four children. One of these died in 1887, intestate, unmarried and leaving him surviving as his heirs-at-law, a brother, two sisters and his father. The father thus took a life interest in the deceased's one-fourth of the premises. Thereafter the three surviving children executed four successive mortgages on the property, accompanied in each instance by an affidavit of title Misc.] Supreme Court, May, 1902. by one of them. The father was not a party to the mortgage, having left the jurisdiction, and his interest remained undisclosed except in so far as it appeared from the records, that is from the mother's will devising her property to her four children and the subsequent mortgages made by only three of them. The four mortgages were duly foreclosed, the father, however, not being made a party. Sale was had at which the defendant, Lapp, became the purchaser at a figure which the evidence establishes to have been the full value of the property. The usual referee's deed was given and under this the defendant Lapp went into actual possession, tore down an old building on the premises, erected a new one and made improvements at a total cost of many thousands of dollars. Thereafter, the father conveyed to the plaintiff his one-fourth life interest in the premises, and any interest he might have in the rents due or to become due. Thereupon this action was begun, the plaintiff claiming to be a tenant in common with the defendant under and by virtue of the deed from the father. The question is whether this latter deed was champertous. I am of the opinion that it was. No question of adverse possession under the Statute of Limitations is involved as the defendant Lapp's possession under the referee's deed is too recent to have. ripened into an indefeasible title on that ground. With the wisdom and policy of the Champerty act I have nothing to do. It may well be as was pointed out long since that "it is the relict of an ancient policy which has been treated with but little favor by either legislature or courts in modern times." Crary v. Goodman, 22 N. Y. 170, 177, and that "it was passed originally to provide against a state of affairs which does not exist in these times." Finn v. Lally, 1 App. Div. 415. Yet in the same year that the implied disapproval of the last quotation was expressed, the legislature saw fit substantially to re-enact in the Real Property Law the previous provision of the Revised Statutes, 1 R. S. 147. We must apply the law as we find it and not as we should. like it to be. Section 225 of the Real Property Law (L. 1896, ch. 547) provides: "A grant of real property is absolutely void, if at the time of the delivery thereof, such property is in the actual possession of a person claiming under a title adverse to that of the grantor." The reason for the enactment of provisions of this nature is to be sought |