Vanderpoel, Cuming & Goodwin, (Delos McCurdy, of counsel,) for appellant. Howe & Hummel, (Austin G. Fox, of counsel,) for respondent. PER CURIAM. The allegations in the complaint, if supported by evidence on the trial, will entitle plaintiff to the judgment prayed for. A situation, therefore, was presented on the motion which authorized the court, in the exercise of a proper judicial discretion, to make an allowance for costs and alimony pending the action. The amount awarded was justified, we think, by the affidavits before the court. The order appealed from should be affirmed, with $10 costs and disbursements. (70 Hun, 382.) CARD V. MEINCKE et al. (Supreme Court, General Term, First Department. June 30, 1893.) JUDGMENT-ENTRY BY CLERK. In an action tried by the court, where the latter in his decision filed directs judgment to be entered in favor of defendants and against plaintiff for costs, the clerk has no power to insert in the judgment that the case should be dismissed "on the merits." Appeal from special term, New York county. Action by Frederick A. Card against Mary M. Meincke and another. Motion by defendants to dismiss after plaintiff rested, which was granted, and judgment ordered to be entered in favor of defendants and against plaintiff, with costs. The clerk entered judgment dismissing plaintiff's complaint "on the merits." Motion by plaintiff to correct the judgment denied, and plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ. L. Karge, for appellant. Hinrichs & Rudolph, for respondents. PER CURIAM. In an action tried before the court without a jury the clerk can only enter a judgment as directed by the court in the decision filed, or upon a subsequent approval by the judge. who tried the cause of the particular judgment that is proposed to be entered. In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judg ment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words, "upon the merits." The order appealed from should be reversed, and the motion granted, with $10 costs of appeal and disbursements, and $10 costs of motion and disbursements. (70 Hun, 439.) PEOPLE v. GRAND LODGE OF EMPIRE ORDER OF MUTUAL AID OF STATE OF NEW YORK. (Supreme Court, General Term, Third Department. July 8, 1893.) INSURANCE COMPANIES-DISSOLUTION-INTERVENTION. In an action by the people to dissolve an insolvent insurance company, where there is a judgment providing for closing up its affairs through a receiver and the court, and appointing a referee to take proof of claims against the company, it is improper to allow an intervention by beneficiaries under a certificate of insurance claiming a certain fund in the hands of the receiver collected on the death of assured, and to appoint another referee to take proof of such claim. Appeal from special term, Clinton county. Action by the attorney general in the name of the people of the state of New York to dissolve the Grand Lodge of the Empire Order of Mutual Aid of the State of New York. From an order permitting George H. Nickelson, Lucy M. Nickelson, Cora E. Moses, and Bertha Baade, to intervene, and appointing a referee to take proof of their claim, the attorney general appeals. Reversed. Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ. Simon W. Rosendale, Atty. Gen., for the People. Chas. W. Mead, for receiver, George W. Maxon. Kellas & Munsill, (John P. Kellas, of counsel,) for respondents George H. and Lucy M. Nickelson and Cora E. Moses. George S. Bixby, for Bertha Baade. MAYHAM, P. J. The defendant was incorporated under chapter 189, Laws 1879, with power to make insurance, and also to institute subordinate lodges, subject to its direction and supervision. In September, 1886, Charles S. Nickelson became a member of the respondent corporation, and received its certificate, which provided that in the event of his death the sum of $2,000, provided in section 25 of the by-laws of the defendant, should be paid, $1,000 of which, by the terms of the certificate or policy, was made payable to his wife, Mary A. Nickelson, two-thirds of the residue to his daughter, Lucy M., and one-third of such residue to his son, George H. Nickelson. The assured survived his wife, and on the 18th of January, 1892, died, leaving him surviving George H. Nickelson, Lucy M. Nickelson, and Cora E. Moses, his heirs and next of kin, who duly notified the grand lodge of the death of the assured, and filed with the grand secretary, at the proper office, proof of such death; and thereafter the grand lodge assessed the members of the order in accordance with the by-laws, upon the death of Charles T. Nickelson and that of John F. Baade, a full-rate member of the order, who had died previous to such assessment, and on that assessment there was paid to the temporary receiver of the defendant the sum of $4,870.14, such receiver having been appointed on the application of the defendant in proceedings instituted by it for a voluntary dissolution of the corporation, after making such assessment pursuant to a resolution of its officers, on whose application a referee was appointed by the special term of this court, before whom it was ordered that cause should be shown; if any existed, why the defendant should not be dissolved. After the appointment of such temporary receiver and the receipt by him of such money on this assessment, an order of the court was granted allowing an action to be commenced against the receiver upon the claim of the heirs and next of kin of Charles T. Nickelson, deceased, for the amount of the policy issued to him, and an action was accordingly commenced against the defendant and such receiver about the 13th of October, 1892, in which the defendant appeared and obtained an extension of the time to answer, but did not serve an answer. On the 1st day of November, 1892, an action was commenced in the name of the people by the attorney general on the complaint of the superintendent of the insurance department, and his report to the attorney general that the liabilities of the defendant were $92,500, while its assets amounted to only about $15,000, as appears by the verified complaint of the attorney general in this action. The defendant appeared by an attorney, but failed to answer, and on the 26th of November, 1892, application was made for judgment at the special term, and judgment was, on the 29th of November, 1892, entered in Saratoga county, dissolving such corporation, and appointing a receiver of the property of the defendant. After the entry of judgment the petitioners on this motion served a notice of motion for the 10th of January for an order that they be relieved from all restraint imposed by this judgment, and that they be entitled to take proceedings to enforce payment to them of the sum mentioned in the certificate issued by the defendant to George H. Nickelson, deceased, and that the receiver be directed to pay the same to them, or that they be permitted to intervene. This motion was granted, and the people, by the attorney general, appealed. It will be seen from an examination of above facts and other facts in the case that this corporation at the time of the commencement and prosecution of this action by the attorney general was an insolvent corporation, with liabilities far in excess of its assets, a fact conceded by the trustees and managers of the corporation, by the attempted voluntary dissolution, and that the action prosecuted by the attorney general was but the usual and legal method of dissolving an insolvent corporation, and thus accomplishing the result sought in vain to be accomplished by the respondents. In that action, through the receiver, all the assets of the corporation can be marshaled, and all valid claims against the fund ascertained and determined by and before the referee who was appointed to take proof of claims against such corporation. If, therefore, the heirs of Charles H. Nickelson, who are petitioners to intervene in this action, were creditors of the corporation, their rights would be fully protected in this action, as they, with all other creditors, would be represented by the receiver, whose duty, under the direction of the court, it would be to apply the assets of the corporation to the payment of its debts. But it is insisted by the petitioners that this fund in the hands of the receiver is in the nature of a special deposit or trust fund, and to the extent of $2,000 belongs to them; and to protect their interest in it, and secure its payment to them, it is necessary that they intervene in and become parties to this action. The judgment in this action was entered on the 26th day of November, 1892, and by its terms seems to have provided for the closing up of the affairs of this corporation through the agency of the receiver with the aid of the court. The order from which this appeal was taken was entered on the 10th day of January, 1893, and, if carried into effect, would necessarily greatly hinder the expeditious and economical winding up of the affairs of the corporation. While it is true that the court has the power, in the exercise of a sound discretion, to allow a party to intervene, the rule seems well settled that in the exercise of that discretion a clear and sufficient reason should appear before such intervention should be permitted, and the exercise of that discretion has frequently been reviewed on appeal. In People v. Globe Mutual Ins. Co., 27 Hun, 530, the order of the special term allowing two claimants of funds in the hands of the receiver to intervene was reversed by general term of this department, and Learned, J., in delivering the opinion of the court, said: "It is not necessary that these parties should intervene in order to establish their claim against the assets in the hands of the receiver. To secure such assets, and to protect and apply the same to their legitimate use, is the duty of the attorney general and the receiver. Since the case of Attorney General v. North American Life Ins. Co., 77 N. Y. 297, the desire to intervene for all causes and for no cause has become common, and the discretion of the court has been exercised in favor of such applications to the great prejudice of the due and proper administration of the law. Each intervener as a right to appeal, and thereby may greatly delay the proceedings." In view of that fact, we think the danger of adsolution of the fund, against which the learned judge at special term perhaps justly objects, would be greatly aggravated, rather than mitigated. In the case of Attorney General v. Continental Life Ins. Co., 90 N. Y. 45, policy holders were allowed to intervene, and upon an application for allowance to attorneys, which came before the court of appeals, Finch, J., said: "These were busy themselves, and kept the court busy, their positions changing during the exigencies of the struggle, sometimes fighting each other, now assailing the receiver, and then defending him, until the controversy became greatly involved, and the fund seriously imperiled by the alleged effort to defend and increase it." It can hardly be maintained that intervention in this case was necessary or proper to guard the fund against the exaction of the attorney general's office in costs, especially as that officer is required by law to report to the comptroller and legislature all costs adjudged to the people and costs recovered by the attorney general, and the manner in which he has expended or applied the same. Chapter 643, Laws 1873; section 53, c. 683, Laws 1892; and, also, section 56 of the same act. Nor do we think intervention necessary on the part of the petitioners to guard their interest against any act of the receiver. He is an officer of the court, and acts under its direction, and is answerable to its summary action to prevent any abuse or perversion of his power or authority. As has been seen, an order was made in this action appointing a referee before whom claims against this corporation can be proved, and it also appears from the case that another referee was appointed on this motion to take proof of the claim of the petitioners to the fund in the hands of the receiver. We see no necessity for this while the reference and the judgment to take proof of claims stands. All the facts which could be proved before the referee appointed by this order can be proved before the referee appointed under the judgment, and, while we believe that either of the gentlemen appointed as referee to take proof of claims is worthy of the fullest confidence, we can see no good reason for suspending the former by the appointment of the latter; nor do we see any necessity for two referees for the performance of substantially the same duty. On the whole, we think the order appealed from should be reversed. Order reversed, with $10 costs and printing disbursements. All concur. (70 Hun, 462.) SNELL et al. v. ROGERS et al. (Supreme Court, General Term, Third Department. July 8, 1893.) STATUTE OF FRAUDS-ORIGINAL UNDERTAKING. Where one working by the day for a subcontractor continues the work on the agreement of the contractor to pay him, this is an original undertaking on a sufficient consideration, which need not be in writing. Appeal from judgment on report of referee. Action by John A. Snell, Alanson Snell, and Lewis D. Snell, partners under the firm name and style of John A. Snell & Sons, against James Rogers, E. F. Fauquier, and George A. Taylor, partners under the firm name and style of Rogers, Fauquier & Taylor. Judg ment for plaintiffs. Defendants appeal. Affirmed. JJ. Argued before MAYHAM, P. J., and PUTNAM and HERRICK, Kellas & Munsill, (John P. Kellas, of counsel,) for appellants. MAYHAM, P. J. The complaint in this action alleges that the defendants are indebted in the sum therein specified, for work, labor, and service done and performed by plaintiffs, their agent, servant, and teams, for the defendants, and at their request. The answer is a denial of the principal allegation in the complaint; an allegation that the work was performed for a person other than the defendants, and that any alleged agreement by the defendants to pay plaintiffs for the same was a parol collateral promise to answer for the debt of another, and void by the statutes of fraud. |