next day, and Dec. 9, 1884, was appointed permanent receiver by a final judgment in said action.

This action is brought to set aside, as fraudulent, the judgment of defendant and to recover from it the value of the chattels sold under the execution. Defendant demurred on the ground that there was a defect of parties defendant, because of the non-joinder of the Syracuse Iron Works. The demurrer was overruled.

Henry A. Maynard, for respts. Forbes, Brown & Tracy, for applt.

Held, Error. The case of Miller v. Hall, 8 J. & S., 262; 70 N. Y., 250, reviews the conflicting decisions and settles the rule that in actions to set aside fraudulent conveyances the alleged fraudulent grantor is a necessary party defendant.

The Atty. Gen. v. The Guardian Mutual Life Ins. Co., 77 N. Y., 272, which is relied upon, is not in point. That case was under a statute which authorized the Supreme Court to dissolve the corporation, and it having been done the corporation was no longer in existence, and could not have been made a party. The case at bar was not brought under $$ 1785, 1786, Code Civ. Pro., and the Syracuse Iron Works had not been dissolved, but is an existing corporation, with all of the legal rights of a corporation, and is a necessary party defendant in this action brought to set aside a judgment and a transfer of its property had by its consent. Interlocutory

judgment re

versed, with costs, and demurrer sustained, with leave to plaintiff to plead anew on payment of costs.

Opinion by Follett, J.; Hardin, P.J., and Boardman, J., concur.

BANKRUPTCY. SALE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Harriet Gignoux et al., plffs., v. Mary E. Stafford, deft.

Decided Dec., 1886.

Section 9 of the bankrupt law of 1841, providing that all sales by assignees should be made at such times and in such manner as should be ordered and appointed by the court, did not apply to orders for private sales, and such a sale made on an order which did not fix the time is valid.

Submission of controversy without action.

Plaintiffs and defendant entered into a written agreement by which the former agreed to sell and the latter to buy certain real estate which was struck down to defendant at public auction.

Defendant refused to accept a deed on the ground that plaintiffs could not convey a good title.

It appears that in 1841 one U. was seized of the premises in question. In that year a creditor's action was brought against him and a receiver appointed to whom he delivered an assignment of his property. In 1842 U. was adjudicated a bankrupt in voluntary proceedings and the assignee in bankruptcy sold said premises, under an order authorizing him to sell at private sale, "pursuant to

the rules of the court," to one C.,
under whom plaintiffs claim.
is claimed that the sale by the as-
signee was void because the order
of the court did not fix the time of
sale.

W. C. Dewitt, for plffs.
A. W. Gleason, for deft.

Held, Untenable. Section 9 of the bankrupt act of 1841 provided that all sales by assignees "shall be made at such times and in such manner as shall be ordered and appointed by the court." It will be seen at once that if the act in question is to be construed so that the court must appoint a time when the property should be sold at private sale the power to sell at private sale is nugatory. No court could appoint a time when property should be sold at private sale, and hence such a construction cannot be entertained. The whole law upon this subject must be read and all its parts construed in connection with each other. The section simply means that when a time is appointed it must be so sold, but the court can direct the manner, and if it directs a manner

in which it is impossible to appoint the time the sale is not void. The specific words of the statute can be given their full force and meaning by applying them to sales ordered to be made at auction and the time fixed for such sale to take place.

Smith v. Long, 12 Abb. N. C., 113, has no application, as the sale was a public one and the time could have been appointed.

It cannot be that the State Courts, at this late day, will so interpret a statute as to run counter

to the established practice in the U. S. Courts and throw doubt over the title of an immense amount of property that is held by virtue of such sales, especially when full effect can be given to the words of the statute by holding that "the appointed" does not refer to an order providing for a private sale. We think the sale here by the assignee was valid and carried the title.

A point is made that the title here is in a receiver in chancery, but it does not appear that any such conveyance was ever recorded, and it appears that plaintiffs are bona fide purchasers and have been in exclusive possession for twenty years. The title is good and defendant must take it. Judgment for plaintiffs.

Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur.

PENALTY. BUILDING LAWS. N. Y. COMMON PLEAS. GENERAL TERM.

The Fire Department of N. Y. City, respt., v. Phillip Braender, applt.

Decided Dec. 7, 1886.

A penalty cannot be raised by implication, but must be expressly created and raised by statute.

Appeal from judgment of District Court of the city of New York.

Defendant submitted to the superintendent of buildings pursuant to § 30, Chap. 456, Laws of 1885, specifications and plans for five buildings. They were approved

by the superintendent of buildings and required that the chimney breasts in the party walls of the buildings should be twenty-eight inches in thickness. Defendant then erected his buildings in compliance with these plans and specifications, except that he built the chimney breasts twenty inches, instead of twenty-eight inches in thickness.

The following question is presented Is defendant liable to a penalty for constructing the chimney breasts twenty inches in thickness, when his plans and specifications showed chimney breasts twenty-eight inches. Chapter 456, Laws 1885, under which a penalty is claimed, contains no provision which fixes the thickness of chimney breasts. Section 505 provides a penalty for erecting buildings in violation of the methods of construction required by the said Act; and also a penalty for any violation of the provisions of the title.

Bartlett, Wilson & Hayden, for applt.

W. L. Findley, for respt.

Held, That no penalty is created and imposed for the non-conformity to the plans and specifications filed and approved in the matter of the thickness of chimney breasts. The argument that the provision of the building laws requiring the filing and approval of plans before building necessarily involves a requirement that the building shall be erected in accordance with the approved plans and specifications, and a variance therefrom is a violation of the act, and

plaintiff's proposition that because a building does not conform in some particular with the plans and specifications filed and approved, therefore the building has been erected without filing the plans and specifications and procuring their approval, are in conflict with the law as laid down in Health Department v. Knoll, 70 N. Y., 536. In that case it is held that a penalty must be expressly created and imposed by statute and cannot be raised by implication. There is no penalty given by the statute for the act complained of and, therefore, the judgment must be reversed.

Opinion per curiam; Van Hoesen and Allen, JJ., sitting.

HIGHWAYS. PLEADING. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

John H. Watrous, respt., v. John W. Shear, Comr. of Highways, applt.

Decided Nov., 1886.

In an action for labor performed upon a highway plaintiff, upon proving the number of days he labored, is presumptively entitled to the statutory compensation, and is not obliged to prove the value of his labor.

Where the complaint clearly alleges an official and not an individual liability the omission of the word "as" between defendant's name and his official title is not fatal.

Appeal from judgment in favor of plaintiff.

Action for services performed and material furnished upon a highway in the town of Kirkwood under a contract with defendant

dence. One of the plaintiffs, Anna Clark, who taught penmanship in a school, was allowed to testify that upon comparing a note which was shown to have been signed by James Clark with the signature to the deed from him to Crouch the signature to the deed was not that of James Clark.

M. Schoonmaker, for applts. F. L. Westbrook, for respts. Held, That the witness was not competent and her evidence inadmissible. Chapter 36, Laws of 1880, allowing this comparison, has not changed the rule that the persons who do it must be experts. Other witnesses can only testify to facts. There is nothing to show that the witness was an expert. 95 N. Y., 73.

Against defendant's objection plaintiffs were also permitted to prove statements made to others by Lawrence, the subscribing witness, that he did not have anything to do with this transaction of Clark and that he did not know Clark at the time; also by another witness that he did not know James Clark and had no transaction with him; that he was willing to help plaintiffs and would come to Kingston on payment of his expenses. The object of the testimony was to discredit Lawrence's proof as subscribing witness. The view most favorable to plaintiff is to assume that in reality Lawrence was a witness for defendant by his proof as subscribing witness, and hence that his testimony (the proof before the notary Sackett) might be attacked by showing that

ments. But the difficulty is that in such case the witness must first be asked whether he had made the alleged contradictory statements. Lawrence was not asked this, for he was not a witness in the case. We do not decide however that Lawrence was in effect defendant's witness, nor is this settled by 2 Wend., 555, as plaintiffs claim. The statute allowing a deed acknowledged to be recorded may be abused, but it might also be a very serious evil to treat every witness who had thus proved a deed out of court as if he were a witness produced on the trial by the party offering the deed in evidence and as subject to all the 'modes of impeachment to which a witness in court is liable.

Judgment reversed and new trial granted.

Opinion by Learned, P.J.; Bockes and Landon, JJ., concur.

WILLS. HEIRS.

N. Y. SURROGATES COURT. In re estate of Sigmund Sinzheimer, deceased.

Decided Dec., 1886.

་

Testator by the third article of his will provided that all the rest, residue and remainder of my property, both real and personal, I give, devise and bequeath to the following parties, namely: $5,000 to Katie Tems and the balance to my natural heirs." Held, That in the absence of anything in the context of the will, and of any circumstances of the testator or the state of his family from which it can be inferred or suspected that by his use of the word "natural" he designed either to enlarge or restrict the meaning which