heretofore as attorney for the plaintiff in said suit, I consent to the above substitution;" that the first notice defendant had of any claim was when she was served with the summons and complaint in this action in the fall of 1889; that the only bill for his services which plaintiff ever sent to any one was sent to Hubbell & Co. It also appears that defendant's son acted as her agent in all of these transactions, and that whatever he did was done with Hubbell & Co., and that in the course of these dealings he knew that the plaintiff was the attorney of record in the action commenced in the state of Illinois. Under such a state of facts, it is clear that the plaintiff was acting on a retainer from Hubbell & Co., and not from the defendant, and the question of her liability depends upon whether or not Hubbell & Co. were merely her agents in the transaction, or were themselves principals, and we think there can be no doubt but that they were principals. Under the name of an agency, they were conducting a collecting business on their own account. They would be responsible to the defendant for the collection of the money, not as agent, but as principal. So they are responsible to the plaintiff for any services rendered by him to them. They undertook to collect

the note, and not merely to employ agents for the defendant to do so. This has been expressly decided in Hoover v. Greenbaum, 61 N. Y. 305, otherwise known as Hoover v. Wise, 91 U. S. 308. After re viewing all of the authorities, the majority of the court say:

"We are of the opinion that these authorities fix the rule in the class of cases we are now considering, to wit, that of attorneys employed, not by the creditor, but by a collection agent who undertakes the collection of the debt. They establish that such attorney is the agent of the collecting agent, and not of the creditors who employed that agent."

In Bank v. Gilman, 81 Hun, 487, 30 N. Y. Supp. 1111, it is said: "In some other jurisdictions it has been held to be within the implied authority of the collecting agent, when paper is to be collected at some place remote from that of the business, for such agent to employ a subagent in that locality to make collection on account of the owner. But in this state the rule is otherwise, and, in the absence of any understanding or agreement to the contrary, it is to the effect that the collecting agent is deemed to employ such other collector on his own account. Thus the collecting agent becomes chargeable to his principal for the conduct of the bank or individual to whom he transmits the paper for collection."

In this case the evidence is clear that there was no understanding or agreement on the part of the defendant about the employment of the plaintiff for or on her account or as her attorney, but, in our judgment, it is conclusive that he was employed by the Hubbell agency in the course of their business as a collecting agency. We think that if banks into whose care negotiable instruments are placed for collection are regarded as principals, so much the more should a collecting agency, whose sole business it is to collect claims placed in its hands, be so regarded. We are aware that the liability of banks in such case has been much discussed, and that there is a great conflict of authority on the subject. It has been held, on the one hand, that the bank first receiving the paper is answerable for the neglect, omission, or other misconduct of the bank or agent it may employ, following the general rule of law that an agent is liable

for the acts of a subagent employed by him. This is the doctrine established by the decisions of the supreme court of the United States, of this state, New Jersey, Ohio, Indiana, and the courts of England. Exchange Nat. Bank v. Third Nat. Bank, 112 U. S. 276, 5 Sup. Ct. 141; Allen v. Bank, 22 Wend. 215; Smedes v. Bank, 20 Johns. 384; Montgomery County Bank v. Albany City Bank, 7 N. Y. 459; Commercial Bank v. Union Bank, 11 N. Y. 203; Ayrault v. Bank, 47 N. Y. 570; Titus v. Bank, 35 N. J. Law, 588; Reeves v. Bank, 8 Ohio St. 465; Tyson v. Bank, 6 Blackf. 225; Abbott v. Smith, 4 Ind. 452; Kent v. Bank, 13 Blatchf. 237, Fed. Cas. No. 7,714; Van Wart v. Woolley, 3 Barn. & C. 439; Mackersy v. Ramsay, 9 Clark & F. 818. In 112 U. S. 276, 5 Sup. Ct. 141, Judge Blatchford said:

"The bank is not merely appointed an attorney authorized to select other agents to collect the paper. Its undertaking is to do the thing, and not merely to procure it to be done. In such case the bank is held to agree to answer for any default in the performance of its contract, and whether the paper is to be collected in the place where the bank is situated, or at a distance, the contract is to use the proper means to collect the money, and the bank, by employing subagents to perform a part of what it has contracted to do, becomes responsible to its customer."

In 35 N. J. Law, 588, Chancellor Zabriskie said:

"A dealer, who deposits a draft on a distant city in a bank in his own town, has no choice of their agent or correspondent. It is the business of the bank to provide proper agents or correspondents for this service, when they adopt it, as most banks do, as a part of their regular business. If they have no such correspondent they should refuse to take paper for collection, and then the holder could choose whether he would leave it for transmission. He would then be led to inquire about the agent to whom it would be transmitted. The English and New York rule is much better adapted to the convenient dispatch of business. It is no hardship on the bank. It can always look to its correspondent bank, to which transmission is made, for indemnification from its negligence."

But it is held, on the other hand, that the liability of a bank, under such circumstances, extends merely to the selection of a suitable and competent agent at the place of payment, and to the transmission of the proper instructions, and that the corresponding bank is the agent of the holder, and that the transmitting bank is not liable for the default of its correspondent, when selected with due care. This view has been adopted by the courts of Massachusetts, Connecticut, Pennsylvania, Illinois, Louisiana, and Missouri. Mr. Morse, in his work on Banks, approves of the latter doctrine (Morse, Banks, 2d Ed., 414); while Mr. Daniel, in his work on Negotiable Instruments, maintains the doctrine established by the courts of this state (1 Daniel Neg. Inst., 3d Ed., § 342). Whatever the views of the courts of other states may be, the liability of the bank receiving the paper to the owner is too well established in this state to need further discussion. It therefore follows that the learned judge who tried this case properly dismissed the complaint, and the judgment entered thereon should be affirmed, with costs. All concur.

(11 Misc. Rep. 279.)

KITTEL v. STUEVE.

(Common Pleas of New York City and County, General Term. February 4,

1895.)

1. CONTEMPT-Failure to PAY JUDGMENT-PAYMENT OF MONEY.

A direction, in the final judgment for specific performance against a purchaser, that defendant, on tender of a deed, pay the purchase money as provided by the contract, is not a mandate within the meaning of Code Civ. Proc. § 14, subd. 3, providing that a court of record may punish a party for disobeying a mandate of the court.

2. SAME-JUDGMENT ENFORCEABLE BY EXECUTION.

So far as such judgment directs payment of the purchase money, it may be enforced by execution, and therefore cannot be enforced by contempt proceedings, under Code Civ. Proc. § 1241, subds. 1, 2, providing that a final judgment which cannot be enforced by execution may be enforced by proceeding against the party for contempt.

8. SAME DIRECTION TO PAY TAXES AND ASSESSMENTS.

A direction in such judgment to pay all taxes and assessments which had become liens since the day when the title should have passed, without stating the amount thereof, even if not enforceable in that form, is not enforceable by contempt proceedings, since it could be amended by inserting the amount.

A final judgment for specific performance against a purchaser, which directs that defendant accept a deed, that he make the cash payment according to the contract, and execute a bond and mortgage for the balance, does not require indivisible acts, but provides, among other things, for the payment of money which may be enforced by execution within the meaning of Code Civ. Proc. § 1241, subd. 2, providing that where a judg ment is final, and a part of it cannot be enforced by execution, such part may be enforced by proceeding against the party for contempt.

Appeal from special term.

Action by Joseph J. Kittel against Henry Stueve for specific performance. From an order denying the motion to punish defendant for contempt of court for refusing to obey the final judgment, plaintiff appeals. Affirmed.

Argued before BOOKSTAVER, BISCHOFF, and GIEGERICH, JJ. John A. Straley, for appellant.

Frederick W. Hinrichs, for respondent.

GIEGERICH, J. This action was brought to require the defendant to specifically perform his contract for the purchase of certain real property. The trial of the issues resulted in a decision in favor of the plaintiff, and judgment was entered directing that the defendant accept a deed of the premises in controversy; that he pay on delivery of said deed the balance of the purchase price to be paid on delivery thereof pursuant to the terms of said contract in cash, to wit, the sum of $2,675, and, in addition thereto, the sum of $2,975, which would have become due under said bond and mortgage if executed as provided in said contract,-making in all a cash payment of $5,650, with interest thereon; that upon the delivery of the said conveyance he accept the same, and deliver to the plaintiff a bond and mortgage to secure the balance of the purchase price, the form of said bond and mortgage to be settled and approved by one of the

judges of this court in case the parties differ respecting it; and that he pay all taxes and assessments against said premises that may have become liens thereon since the 25th day of July, 1892, the date the title to said premises should have passed. And the judg ment also provides that the plaintiff recover of the defendant his costs and disbursements, amounting to $409.40, "and that plaintiff have execution therefor." Upon the defendant's alleged refusal to obey the judgment, the plaintiff instituted these proceedings at special term to punish the defendant for a contempt, and the ap-. plication was denied, "with leave to renew it, upon a proper demand, with respect solely to the acceptance of the deed and execution of the bond and mortgage in the judgment mentioned, defendant refuses to perform as directed by the judgment in those particulars." The moving papers failed to show that a deed and bond and mortgage were in fact tendered; but, tender of the deed, and of the bond and mortgage for execution, having been conceded, the court below held that "the execution of the bond and mortgage may be enforced by attachment, but not the payment of the balance of the contract price, for judgment therefor can be docketed, and such judgment can be enforced by execution." The plaintiff did not renew the motion, but brought on this appeal.

The power to punish a party for a contempt for the nonpayment of a sum of money ordered or adjudged by the court to be paid has been restricted by subdivision 3 of section 14 of the Code of Civil Procedure to cases where by law execution cannot be awarded for the collection of such sum. And the same restriction has been preserved by section 1241 of the Code. Jacquin v. Jacquin, 36 Hun, 378, 380. These restrictions are not affected by subdivision 4 of the latter section, for that permits the punishment for a contempt only where the judgment requires the payment of money into court, or to an officer of the court. Jacquin v. Jacquin, supra; People v. Grant, 41 Hun, 351, 355. The judgment entered in this action being a final one, it is evident from an examination of the provisions of the Code relative to proceedings for the punishment of a contempt that subdivisions 1 and 2 of section 1241 alone apply to the case at bar, subdivision 3 of the same section relating exclusively to an interlocutory judgment, and subdivision 4, as before shown, relating to judgments for the payment of money into court, or to an officer of the court. As the directions contained in the judgment for the payment of moneys are not "mandates" (Jacquin v. Jacquin, supra), the provisions of subdivision 3 of section 14 of the Code, supra. therefore, have no application. In either of the following cases, a judgment may be enforced by contempt proceedings:

"(1) Where the judgment is final, and cannot be enforced by execution, as prescribed in the last section. (2) Where the judgment is final, and part of it cannot be enforced by execution, as prescribed in the last section; in which case the part or parts, which cannot be so enforced, may be enforced as prescribed in this section. Code Civ. Proc. § 1241.

Section 1240 prescribes:

"In either of the following cases, a final judgment may be enforced by execution: (1) Where it is for a sum of money, in favor of either party; or

v.32N.y.s.no.3-18

directs the payment of a sum of money. (2) Where it is in favor of the plaintiff, in an action of ejectment, or for dower. (3) In an action to recover a chattel, where it awards a chattel to either party."

The result of a careful examination of the authorities in relation to this subject is that we are convinced it has become well estab lished by the frequent decisions in the courts of the state that punishment as for a contempt cannot be inflicted for disobeying a final judgment in cases where an execution can issue.

Plaintiff's counsel insists that an execution could not be issued upon the direction contained in the judgment as to the payment of taxes and assessments. This objection is, however, merely as to form, and not substance. If there be any defect, the same may be cured by amendment. The amount of the taxes and assessments have been fixed, and could have been ascertained upon inquiry at the proper office; and by his failure to insert the same in the judg ment the plaintiff acquired no right to punish the defendant for a contempt. Myers v. Becker, 95 N. Y. 486. But the direction referred to is, in our opinion, sufficient, if not for the purpose of issuing an execution, then, at least, to defeat the present application in respect thereto. Matter of Hess, 48 Hun, 586, 1 N. Y. Supp. 811. In the case last cited the order directed the payment of a certain sum of money, also "the fees of the referee and stenographer, and such other disbursements as have been made or necessarily incurred in said accounting, to be taxed by the clerk on notice; and also the interest on the sum awarded"; and the court held that the order was capable of enforcement by execution under section 1240 of the Code, and that punishment as for a contempt could not be inflicted for disobedience of the order. As the direction contained in the judgment for the payment of the moneys was capable of enforcement by execution, and as the willingness of the defendant to comply with the remaining provisions of the judgment has not been questioned upon this appeal, it is apparent that the order appealed from was proper.

Plaintiff's counsel insists "that the execution of the deed, the bond, and mortgage, the payment of the balance of the purchase price, and the payment of the taxes are indivisible acts, constituting together 'specific performance' of the judgment, and cannot be separated for the purpose of defeating this application"; but this contention is effectually answered by the provisions of subdivision 2 of section 1241 of the Code, above cited, which expressly authorizes such a separation to be made, and the right to do so was distinctly recognized in People v. Grant, supra, in which the complaint alleged that the defendant had obtained from the plaintiff, by means of false and fraudulent representations, her promissory note for $100, and also the sum of $300, as a deposit to secure the payment of the rent reserved by a lease mentioned in the complaint. The judgment directed the return and cancellation of the note and the return of said sum of $300, and also gave damages to the amount of $4,468.71. Upon his failure to comply with the provisions of the judgment, the defendant was adjudged guilty of contempt, a fine being imposed on him, and directions were given for his imprisonment until the