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Byram L. Winters, (James A. O'Gorman, of counsel,) for appellant. Henry L. Sprague, for respondents.

BARRETT, J. This action was for rent, against the assignees of the original tenant. The complaint sets out the lease, and the assignment thereof to the defendants "subject to the covenants therein contained.” It is then averred as follows:

“That thereupon and thereunder the defendants entered into occupation and possession of the premises under the terms and conditions of said agreement, and did attorn to pay rent, under and as provided by said agreement, for the premises aforesaid, to this plaintiff, us their landlord."

The defendants admitted the facts thus averred, and their sole defense was that before the rent here claimed became due they, in their turn, assigned the lease to one Chapin, and vacated the premises; Chapin thereupon entering into possession, and attorning to the plaintiff. Upon the trial the defendants gave evidence tending to establish the facts thus aflirmatively pleaded, and the plaintiff, in rebuttal, put in evidence the judgment of a district court, dispossessing these defendants for the nonpayment of the rent, for the recovery of which the present action was brought. The defendants objected to this judgment, claiming-First, that it was void for want of jurisdiction; and, second, that it was not res adjudicata as to the relation of landlord and tenant, or as to their liability as assignees.

The first objection was based upon an irregularity in the service of the precept in the .summary proceeding. It must be conceded that the precept was not served according to law, but the irregularity in that respect was cured. The record shows that the tenants appeared generally upon the return day, and that the justice thereupon wrote upon the back of the precept: “Answer to be filed by 11 A. M. If not filed, judgment to be signed. If filed, to be adjourned to 13th.” The city marshal, who had charge of the proceedings, also testified that there was an attorney who appeared for the tenants. There was thus a waiver of any defect in the service of process, and jurisdiction to proceed was conferred upon the justice. A magistrate, in these proceedings, can acquire jurisdiction of the person by consent, though not, of course, of the subject

matter. McCarthy v. Noble, 5 N. Y. Leg. Obs. 380; Campbell v. Mallory, 22 How. Pr. 189. And see Sims v. Humphrey, 4 Denio, 185; Nemetty v. Naylor, 100 N. Y. 569, 3 N. E. Rep. 497.

No attempt was here made to dispute this appearance, or to show that It was unauthorized. The judgment was therefore jurisdictionally valid.

The other point is equally untenable. It was distinctly held in Brown v. Mayor, etc., 66 N. Y. 385, that a judgment taken by default in these summary proceedings, until reversed, set aside, or vacated, is conclusive (in an action by the landlord against the tenant to recover the rent) of the facts alleged in the affidavit, and which are required by the statute to be alleged as the basis of the proceedings. In the proceedings under consideration the

essential facts alleged in the landlord's petition and affidavit were the original lease, the assignment thereof to the defendants, their entry and attornment thereunder, the amount of rent due, and the holding over without permission after default. As to all these facts, except the amount of rent due, the judgment was conclusive. Even as to the amount due, Brown v. Mayor, etc., would seem to be in point. It was held, however, in Jarvis v. Driggs, 69 N. Y. 147, that this particular question was not decided in Brown v. Mayor, etc., and that the tenant was not concluded by the landlord's affidavit as to the amount of rent. It is said in the latter case that the amount of rent is nonessential, as the landlord is entitled to a warrant if any rent whatever is due, and the tenant holds over without permission after demand. The reason of the distinction is not apparent, as the landlord must fail unless he establishes a demand for the amount due as averred. This is as essential to obtain judgment of dispossession as the existence of the tenancy, or other jurisdictional facts. Be that as it may, however, the judgment is clearly binding upon the question of the defendants' liability as assignees in possession; in other words, upon every fact alleged in the landlord's affidavit, except as to the amount of rent. The general doctrine enunciated in Brown v. Mayor, etc., is not questioned in Jarvis v. Driggs, and it has since been reaffirmed in many cases. Leavitt v. Wolcott, 95 N. Y. 212; Blair v. Bartlett, 75 N. Y. 153; .Nemetty v. Naylor, 100 N. Y. 570, 3 N. E. Rep. 497. The judgment under consideration certainly depended upon the original lease, the assignment thereof to the defendants, and the fact that they held over, and continued in possession of the demised premises, without the permission of the landlord. As to these facts they are estopped from questioning the judgment, and such facts are conclusive in favor of the plaintiff's right to recover the rent reserved in the lease prior to the dispossession. The defendants had an opportunity of showing before the justice that they were not assignees in possession; that in fact they had assigned the lease, and vacated the premises; and that their assignees were in possession. But they did not choose to avail themselves of this defense. As was said in Brown v. Mayor, etc., they were “informed of the claim made" against them, and they were “called upon to contest it.” They could have absented themselves, if they desired to question the service of the precept, or they could have appeared, and objected to such service. But they did neither. They simply appeared, without making any objection or interposing any defense upon the merits.

Under such circumstances the judgment is con: clusive upon their liability as assignees in possession. Being so concluded, they are liable on all covenants that run with the land. Thus, they are liable for the taxes, as well as for the rent proper, for such was the obligation of the original lessee. Tayl. Landi. & Ten. § 437.

It was not necessary to put the original lease in evidence, as it was admitted by the pleadings. The assignment to, and attornment by, the defendants, were also admitted. That being so, the unpaid rent and taxes were prima facie due and payable by the defendants, and the plaintiff was not called upon to furnish any other proof upon that head. To absolve themselves from the liability arising upon this state of facts, the defendants were bound to show that at the time when the rent and taxes became due, under the terms of the lease, there was no longer any privity of estate between themselves and the plaintiff; in other words, that they had then assigned the lease, and vacated the demised premises. This, however, it was impossible for them to show, because the very reverse was conclusively established by the judgment in the summary proceeding. It follows that the verdict should have been for the plaintiff

, and not for the defendant. The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant, to abide the event. All concur.

(70 Hun, 394.) McCREADY v. FARMERS' LOAN & TRUST CO. et al. (Supreme Court, General Term, First Department. June 30, 1893.) TRUSTEE-ACCOUNTING-PARTIES-EXECUTOR OF COTRUSTEE.

Where a trustee resigns, and afterwards brings an action for an accounting of her actions as trustee, against her successor, who is also executor of the will of her cotrustee, and thereafter defendant resigns as executor of the will of such cotrustee, the administrator with the will annexed is a proper party to the action. Appeal from special term, New York county.

Action by Caroline Amanda McCready against the Farmers' Loan & Trust Company, as trustee and guardian of the estate of Francis Marion Whaley, and Francis Marion Whaley, for an accounting. From an order denying a motion of William Whaley, administrator with the will annexed of the estate of Louisine W. Whaley, deceased, to be made a party defendant, said William Whaley appeals. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER,

JJ.

Charles A. Jackson, for appellant.

Seward, Guthrie & Morawetz, (Charles Steele, of counsel,) for respondent.

PER CURIAM. October 8, 1887, Nathaniel L. McCready died, leaving a widow, the plaintiff in this action, and three children, one of whom was Louisine W. Whaley, the wife of William Whaley. McCready devised and bequeathed a certain portion of his property to trustees for the benefit of his daughter Louisine, the income arising from the use of which was to be paid to her during life; and the principal, upon her death, was to be paid to such of her lineal descendants as she might, by her last will, appoint, or, in case of failure to appoint, to her issue. On the 21st of June, 1888, all of the trustees, except the plaintiff in this action and Louisine W. Whaley, resigned, and were discharged, by an order of the

court, from the trusteeship, and thereafter the trust estate was held by the plaintiff and said Louisine for the benefit of the latter. They continued to act in this capacity until September 27, 1889, when the plaintiff resigned; and on the same day an order was entered, discharging her from her position as such trustee, and thereupon the Farmers' Loan & Trust Company was substituted as a trustee in the place and stead of this plaintiff. October 10, 1889, Louisine W. Whaley died, leaving an infant son, Francis Marion Whaley, who is a defendant in this action, and William Whaley, her husband. She left a last will and testament, by which she appointed her said son to receive the principal of the trust estate devised and bequeathed pursuant to the provisions of her father's will. By her will she nominated her husband as the sole executor thereof. January 7, 1890, her will was probated, but letters testamentary were refused to Whaley; and thereafter such letters were issued to the Farmers' Loan & Trust Company, which was also appointed the guardian of the estate of the infant. April 18, 1891, this action was begun for an accounting by the plaintiff of her actions as trustee of the trust estate. In November, 1892, the Farmers' Loan & Trust Company resigned its position as administrator of Mrs. Whaley's estate, and William Whaley was appointed administrator, with the will annexed, of the estate. In February, 1893, he moved for an order making him a party to this action for an accounting, which motion was denied.

We think that the representative of a deceased cotrustee is a proper party to an action brought by a trustee for an accounting. Should any question arise whether there had been an improper administration of the estate by the trustees, it might be quite necessary to determine which of the trustees, as between them. selves, was liable for the waste. In no other way could the representative of the cotrustee raise the question whether the trustee seeking for an accounting had misapplied any of the trust estate, or whether the devastavit, if any was committed, was the joint act of both trustees, or the act of one. In such an action the liability of all the trustees should be determined. It oftentimes happens that a devastavit has been committed under circumstances which render but one of them liable; and should it appear in this action that the deceased cotrustee, Louisine Whaley, was liable for devastavit, a judgment should be rendered in accordance with the fact, and the amount of her liability charged against any sum which her representative is entitled to receive from the time of the last payment of income to her until her death. In no other way can a full and complete determination of the rights and liabilities of all the parties be had. The order should be reversed, with $10 costs and printing disbursements, and the motion granted, with $10 costs.

(70 Hun, 334.) SHERMAN V. GRINNELL et al.

(Supreme Court, General Term, First Department. June 30, 1893.)

FALSE IMPRISONMENT-PLEADING AND PROOF-VARIANCE_WHAT CONSTITUTES.

The complaint, in an action for false imprisonment, alleged that defendants, under color of authority of an execution against plaintiff's person, illegally issued on a judgment rendered against him on a certain date in an action brought against him by defendants, “maliciously, unlawfully, and without legal authority assaulted" plaintiff, and arrested, detained, and unlawfully deprived him of his liberty. Held, that under such allegations plaintiff could introduce in evidence an execution which recited that a judgment was obtained against him on the same date, as alleged, in an action by "G. and B., [deferdants,) executors," together with proof of defendants' handwriting on such execution, and with evidence that it was the execution under which plaintiff was arrested, since_the word "executors" in such execution was mere surplusage. Follett, J., dissenting.

Appeal from circuit court, New York county.

Action by Roger M. Sherman against Irving Grinnell and others for false imprisonment. From a judgment entered on a verdict directed for defendants, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

Joseph A. Thompson, (James M. Smith, of counsel,) for appellant.

Evarts, Choate & Beaman, (W. V. Rowe and Joseph H. Choate, of counsel,) for respondents.

VAN BRUNT, P. J. This action was brought to recover damages for false imprisonment, the claim being that the plaintiff was taken into custody under an execution unlawfully issued at the instance of the defendants. The difficulties into which the plaintiff has fallen have arisen entirely from the fact that he has alleged much more than was necessary for the proper setting forth of his cause of action, but such surplusage in no way affected the force of the proof attempted to be offered, and which was excluded. The complaint alleged, among other things, that on the 27th of February, 1889, the defendants, under the color of authority of an execution issued against the person of this plaintiff, which they illegally issued to the sheriff of the county of New York upon said judgment (judgment having been previously referred to) at the city of New York, maliciously, unlawfully, and without legal authority assaulted the plaintiff, arrested this plaintiff, and detained and unlawfully deprived him of his liberty for the space of six months thereafter. This was the gravamen of the complaint; and, in order to prove this allegation, the plaintiff offered in evidence an execution, where in it was recited that a judgment had been obtained on the 23d of February, 1886, in an action in the city court between Irving Grinnell and J. S. Bowdoin, executors, plaintiffs, and Roger M. Sherman, defendant, in favor of said Grinnell and Bowdoin against the said Sherman for the sum therein stated, etc., together with proof of the handwriting of the defendant Hardon upon such execution, and

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