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should be apportioned according to the extent and value of the services rendered for each estate, respectively, which may be done upon the settlement of the decree, at which time counsel may be heard thereon. The other item, of $100, sought to be charged for services of this bookkeeper, must be disposed of upon the taxation and adjustment of the costs of this proceeding, as such services were rendered in preparing the accounts rendered in this proceeding.

The stipulation entered into upon the hearing on April 8, 1892, disposes of the $1,250 item for counsel and attorneys' charges, and the same may stand disposed of in accordance therewith.

Let a decree be presented for settlement and entry in accordance with the conclusions above set forth, costs to each party to be adjusted and inserted in the decree, payable out of the estate.

(4 Misc. Rep. 626; mem. report without opinion.)
APPEL et al. v. BROOKS.

(City Court of New York, General Term. June 28, 1893.)


A judgment by default will not be vacated on the ground that defendant was an infant at the time the judgment was rendered, but the defense of infancy can be interposed in such case only after procuring an order opening the default, and allowing defendant to plead.

Appeal from special term.

Action by Jacob Appel, Gerson J. Newwitter, Myron J. Furst, and Daniel Speyer against Solomon Brooks and Aaron Brooks to recover $798.79, with interest, for goods sold and delivered to defendants. From an order denying the motion of defendant Aaron Brooks to vacate and to set aside the judgment entered herein against him by default, and to declare null and void all the proceedings had, said Aaron Brooks appeals. Affirmed.

Mr. Justice McCARTHY filed the following opinion at special term:

This is not a motion to open a default, and allow the defendant to come in and defend, but it is to vacate and set aside a judgment and execution taken by default on the ground that the defendant was not twenty-one years of age at the time of said judgment and execution, and that, therefore, they are null and void. There is nothing in this contention. The question of infancy can only be raised after the default is opened, and the defendant allowed to plead. There may be reason why the default should be opened so as to allow it to be pleaded, but the defendant does not ask for this relief. Motion is denied, with ten ($10) dollars costs.

Argued before VAN WYCK and FITZSIMONS, JJ.

Otto I. Wise, for appellant.

George W. Galinger, for respondents.

FITZSIMONS, J. Order affirmed, upon the opinion of the special term justice, with costs.

(4 Misc. Rep. 268.)


(City Court of New York, General Term. June 19, 1893.)


Failure to serve process in an action within 30 days after an attachment had been granted, as required by Code Civil Proc. § 638, renders the attachment void, under section 416, which provides that jurisdiction acquired by the granting of a provisional remedy is liable to be divested where it "is made dependent * * upon some act to be done after the granting of the provisional remedy;" and a demand by the owner of the attached goods for their return, after the attachment had been vacated for such failure to serve process, need not be made before suing to recover the value thereof.

Appeal from trial term.

Action by Ludwig Ruser against the Union Distillery Company. From a judgment entered on a verdict on the 3d day of November, 1892, in favor of plaintiff, for $1,843.69, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before MCGOWN and VAN WYCK, JJ.

Samuel E. Duffy, (S. F. Kneeland, of counsel,) for appellant.
James A. McCreery, for respondent.

McGOWN, J. This action was brought to recover the value of certain property, being the stock and entire business assets of a wholesale and retail wine and liquor store, which was taken by the sheriff under a warrant of attachment against the property of the plaintiff's assignor, at the suit of the defendant herein. The property in question was owned by one Henry Ruser, a brother of the plaintiff herein, said Henry Ruser having carried on business as a dealer in wines and liquors at No. 824 Third avenue for a long time prior to the commencement of this action. On or about the 20th day of April, 1891, an attachment was granted by the supreme court in an action wherein the defendant herein was plaintiff against the said Henry Ruser, and the goods in question were taken by the sheriff under said attachment on the 26th day of October, 1891. The said Henry Ruser, appearing specially for the purpose, applied to the court to vacate and set aside the warrant of attachment for irregularity, and on the ground that the court was without jurisdiction of the action, in this: that personal service of the summons was not made on the said Henry Ruser, or service thereof by publication commenced, or service thereof made, without the state within 30 days after the granting of said warrant of attachment. The said court thereafter, at a general term thereof, by order duly made and entered on or about the 26th day of October, 1891, granted said motion, and vacated and set aside said warrant of attachment. 16 N. Y. Supp. 50. None of the aforesaid property, taken and carried away by the defendant, was at any time returned to the said Henry Ruser. Subsequently, and before the commencement of this action, (which was commenced on or about the 16th day of January, 1892,) viz. on or about the 8th day of December, 1891, the said Henry Ruser assigned and

transferred to Ludwig Ruser, the plaintiff herein, his claim or demand and cause of action against the defendant herein, for damages for the unlawful taking away of the property herein before mentioned. On or about the 30th day of June, 1891, in another action between the same parties, another warrant of attachment against the said property of the said Henry Ruser was granted, and a levy made thereunder by the same sheriff, and a sale of said property made by the sheriff for $638.30, which amount was applied by said sheriff, upon an execution founded upon the judgment obtained in the latter action.

It is claimed on the part of the defendant that the goods were left in the hands of the sheriff, and that no demand was ever made for the return thereof; that the court obtained jurisdiction under the original warrant of attachment, which had been vacated by the court at general term, by reason of the failure to serve the summons therein within 30 days after the issuing of the attachment, as required by the provisions of section 638 of the Code of Civil Procedure. Section 416 of the Code provides that:

"A civil action is commenced by the service of a summons. But, from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act to be done after the granting of the provisional remedy."

The act required to be done, however, was, by section 638 of the Code, either the service of the summons personally or by publication. This question, however, has been finally adjudicated upon in Blossom v. Estes, 84 N. Y. 617, wherein Danforth, J., says:

"Thus, an attachment can issue only in an action. * There could be no action until after the actual service of the summons. *** Here is a plain condition, on which the vitality of the attachment depended, and it has not been complied with. It was good when issued, but remained so for thirty days only, unless within that time one or the other of the two steps were taken. The plaintiffs, however, neither served the summons personally nor by publication. At the end of that time the statutory bar fell, and with it the attachment. The jurisdiction which attached upon allowances of the warrant ceased, and, as to that proceeding, it was as if the statute had been repealed."

In Fischer v. Langbein, 103 N. Y., at page 84, 8 N. E. Rep., at page 251, the same principle was sustained. Ruger, C. J., says, at page 90, 103 N. Y., and page 252, 8 N. E. Rep.:

"Void process is such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such process, or which loses its vitality in consequence of noncompliance with a condition subsequent, obedience to which is rendered essential."

And at page 94, 103 N. Y., and page 254, 8 N. E. Rep.:

"Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises; and if it, nevertheless, proceeds and entertains jurisdiction of the proceedings, all of its acts are void, and afford no justification to the parties instituting them as aginst parties injuriously affected thereby."

See, also, Day v. Bach, 87 N. Y. 56, wherein it was held at page 60 that:

"There is a great difference between erroneous process and irregular [that is to say, void] process. The first stands valid and good, unless it is reversed. The latter is an absolute nullity from the beginning."

The attachment herein was therefore void, and all acts taken by the defendant thereunder were acts of trespass against the plaintiff's rights and property; and, the defendant having wrongfully obtained possession of plaintiff's property, no demand before suit brought, for the return of the property taken by the sheriff under the attachment, was necessary.

It was claimed herein, on the part of the defendant, that the plaintiff herein, an attorney at law, after the vacating of the said warrant of attachment, for the purpose of bringing an action, and for no other purpose, purchased and took an assignment from the said Henry Ruser of the cause of action herein, and that such transfer was in violation of the provisions of section 78 of the Code, and therefore absolutely null and void. The trial justice, in his charge, submitted this question to the jury, and instructed them that:

"If, from the evidence in this case, you believe that he took an assignment of this claim for the purpose and with the intention of bringing an action upon it, your verdict must be in favor of the defendant."

The jury, from the verdict rendered by them, passed upon this question of fact in favor of the plaintiff.

The question of the value of the property taken was also submitted to the jury, upon the evidence produced upon the trial, who passed upon the same, and found their verdict in favor of the plaintiff for the sum of $1,635 as the value thereof, after a fair and impartial submission to them, by the trial justice, of all the issues of fact raised herein. We do not find any error committed by the trial justice in the rulings made by him, or any merits in the exceptions taken by defendant, and that the verdict was fully justified by the evidence. The judgment and order appealed from must therefore be affirmed, with costs to the respondent.

(4 Misc. Rep. 299.)


(City Court of Brooklyn, General Term. June 26, 1893.)


A mortgage given in good faith for an existing debt is valid as against a mortgage subsequently given for value parted with at the time.

Appeal from trial term.

Action by Anna Korneman against the Fred Hower Brewing Company to recover damages for conversion of personal property. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before CLEMENT, C. J., and VAN WYCK, J.

Hurd & Grim, for appellant.
Frank C. Marrin, for respondent.

VAN WYCK, J. The plaintiff brought this action to recover damages for the conversion of certain personal property, consisting of various articles constituting the entire fittings of a first-class saloon, including, among other things, a bar, back bar, and pump. Plaintiff had a verdict for $1,025, and from the judgment entered thereupon, and from an order denying a motion for a new trial, this appeal is taken.

Plaintiff claims upon evidence which, if believed, shows that some time prior to and upon July 6, 1891, one Fowler was the owner of this saloon business, and the personal property therein above referred to, which he on that day sold to Carhart & Hunold for $2,500, $2,000 of which was paid by the purchasers on the same day, at the request of the vendor, giving to the plaintiff, with her consent, without any effort to defraud creditors, a chattel mortgage payable on demand for that sum on the property in question; that the consideration of this mortgage was an honest indebtedness of Fowler to her for that sum, for which Fowler had previously given her a mortgage, which she surrendered on receiving this one from Carhart & Hunold. The latter was filed in the register's office of this county on July 7, 1891. On July 17, 1891, Fowler gave a mortgage on the same property to the defendant for $600, payable the next day, and claimed by the defendant to have been to secure the purchase price of a bar, back bar, and pump sold to him on that day. On July 18, 1891, this mortgage was filed in the register's office, and foreclosed by defendant, who bought the property in, and subsequently removed it from the saloon, and appropriated it to its own use. The plaintiff claims this property by virtue of her mortgage and the defendant by virtue of its mortgage. Defendant defends on three grounds: First, that plaintiff's mortgage was without consideration, and in fraud of the creditors of Fowler; second, that the bar, back bar, and pump included in this mortgage belonged to this defendant at the time it was made; third, that, assuming this mortgage to be valid and binding on all the property, the plaintiff cannot recover from this defendant, because the plaintiff never made a specific demand of the whole sum of $2,000 from Carhart & Hunold.

Whether or not the plaintiff's mortgage was made with the intent to defraud creditors was properly submitted to the jury on conflicting testimony, and we see no reason, after a critical examination of the evidence, to disturb the decision of that question in favor of plaintiff. Whether or not the bar, back bar, and pump were the property of defendant at the time the mortgage was made to plaintiff was likewise properly submitted to the jury on conflicting testimony, and for the same reason should not be disturbed. The circumstance that Fowler, the only witness on value, testified that the whole property was worth $1,600, taken in connection with the circumstance that it is admitted that the

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