Negley agt. The Counting-Room Company.

no former roll had been filed, and that in case of appeal the trial or final judgment is the one to be appealed from, and no reference need be made to the security judgment. This decision accords with the ruling made in Mott agt. The Union Bank (8 Bosw., 591; affirmed, 38 N. Y., 18).

The order opening the default in legal effect modifies the judgment by depriving it of its ordinary character as a res adjudicata, but leaves it in force as a lien or collateral security (38 N. Y., at p. 20). Until the final determination of the controversy no execution can be issued on the security judgment to enforce its payment (Ford agt. Whitridge, 9 Abb. Pr., 416). The right to continue the lien of the judgment results from the general power which the court has to regulate its judgments, and from section 724 of the Code, which provides that "the court may upon such terms as justice requires" relieve a party from a judgment taken against him by default through inadvertence. Under this authority the lien of the judgment opened may, as one of the conditions upon which it is opened, be retained by way of security (2 Johns. Cases, 286; 6 Cow., 390; 7 id., 477; 9 How. Pr., 442; 35 Hun, 637).

If the plaintiff fails in his action the security is returned by canceling the collateral judgment, which loses its vitality and effect when the action fails. But if the plaintiff finally succeeds in the action the orderly practice is to issue an execution upon the final judgment, which is the real judgment in the case, and if that proves unproductive then to pursue whatever lien the collateral judgment gives; or if a levy has already been made on the collateral judgment, or a proceeding has been founded thereon, and either has been preserved by the order opening the default, it will not be impaired, but may be enforced if the plaintiff finally recovers in the action. But the court, in controlling the execution of its own process, may no doubt, on application, direct the manner of its enforcement so that the rights of all parties may be preserved and enforced without injury or oppression to either. It is clear, therefore,

Early agt. Early.

that the security judgment is to remain of record unimpaired until the judgment entered upon the verdict has been paid, reversed, or in some legal form removed from the judgment docket.

N. Y. COMMON PLEAS.

JULIA H. EARLY agt. MAURICE E. EARLY.

Referee's fees in divorce suits — Who to pay.

In an action for divorce on the ground of alleged cruelty, brought by a wife against her husband, even where the wife prevails, the defendant, the husband, will be compelled to take up the report and pay the referee's fees.

Special Term, August, 1885.

THE plaintiff brought a suit in January last against her husband for limited divorce on the ground of alleged cruelty. The parties were married in this city on May 10, 1879. The case was sent before a referee, whose bill amounts to $150. This sum the defendant alleges his inability to pay, as well as denying the charges brought against him.

VAN HOESEN, J.-There is but one course to pursue in this matter, and that is to require the defendant to take up the referee's report. That report may or may not be confirmed. The plaintiff may or may not prevail in the action. But the court has ordered a reference for the purpose of informing its conscience. The conduct of that reference has involved a bill for referee's fees. Who is to pay them? The referee is the officer of the court and must be paid. The party prevailing would under ordinary circumstances advance them. But that party is the wife, who is without means save such as the husband may provide. Except where it is apparent that the wife's case is without merit, it is the practice of the court to compel the husband to furnish to the wife the means of

Matter of Caamano.

carrying on her suit. It is said that in this action the wife cannot succeed. As to that I have no opinion to express, but the orderly course of business is to bring before the court the testimony that has been taken, together with the report of the referee. In order to do that the fees of the referee should be paid. The judge who examines the report and the testimony will determine whether or not alimony should be allowed. But as a preliminary to obtaining that determination I must order the defendant to pay the fees of the referee. Of course only the legal fees need be paid. Let the proper order be prepared and left with Mr. Jarvis, the clerk, for transmission to me.

SUPREME COURT.

In the Matter of RAMON CAAMANO, an imprisoned debtor.

Imprisoned debtor — Discharge from arrest under the insolvent law — When granted That defendant converted money received in a fiduciary capacity, does not prevent his discharge.

Where the petitioner was arrested for converting to his own use moneys and securities belonging to the plaintiff, while acting in a fiduciary capacity, and was imprisoned in default of bail, and on his application for a discharge his examination showed that in violation of his trust he had used the money and property for his own benefit: Held, that he was entitled to his discharge, because it did not appear that he had disposed or made over any part of his own property, with a view to the future benefit of himself or his family, or with intent to injure or defraud any of his creditors.

Special Term, August, 1885.

ANDREWS, J. After a careful examination of this case I have reluctantly come to the conclusion that the application for the discharge of the petitioner must be granted. There is no dispute about the facts upon which the order of arrest was obtained. Caamano, having in his possession a large

Matter of Caamano

sum of money belonging to Mrs. Roderiguez, who resided in Spain, used the same for his own purposes, and then, under a power of attorney which he held, raised $40,000 more by mortgaging Mrs. Roderiguez's real estate, which was situated in New York, and used this sum in the same manner. The latter transaction was so deliberately planned, ard so carefully and coolly carried out, as to leave no possible doubt that he is a man who hesitates at nothing to accomplish his purposes. He has no possible claim upon the sympathy or tender consideration of the court, and did the law permit it would be but justice that he should be imprisoned for a long term of years. He must, however, be accorded the rights secured to him by the laws of this state, and I am of the opinion that, upon complying with the provisions of the Code, he must be discharged.

In Suydam agt. Belknap (20 Hun, 87), which was an application like this, the petitioner was arrested for converting to his own use moneys and securities belonging to the plaintiff while acting in a fiduciary capacity and was imprisoned in default of $35,000 bail. He applied for a discharge, and his examination showed that in violation of his trust he had used the money and property for his own benefit. It was, nevertheless, held by Mr. justice WESTBROOK that he was entitled to his discharge, because it did not appear that he had disposed or made over any part of his own property with a view to the future benefit of himself or his family, or with intent to injure or defraud any of his creditors. On appeal the order for the discharge was affirmed. The court at general term said: "This case is distinguishable from that In re Brady (69 N. Y., 215), because the charge is that the defendant received money in a fiduciary capacity for which he has not accounted. The defendant Brady was charged with a disposition of his property with the intention of defrauding his creditors, and for that reason it was held that his proceedings were not just and fair. This case does not show any appropriation of this kind, and therefore that he has property VOL. II

31

Matter of Caamano.

attainable by recourse to his grantee or otherwise. The money received was disposed of by him, and though improperly used does not subject him to the rule established by the case referred to. We cannot say under the circumstances that his proceedings have not been just and fair.”

It seems to me that this case is decisive of the present application. With regard to the first money appropriated by Caamano the cases are identical. With regard to the $40,000, the learned counsel for the plaintiff claims that the decision in Suydam agt. Belknap, is not applicable, because the money was obtained through a mortgage, and when it came into Caamano's possession was to be regarded as his money, and that he has therefore disposed of his own money with intent to defraud his creditors, or for the future benefit of himself or members of his family.

I am not able to concur in this view. From a moral standpoint Caamano's conduct in raising money by mortgaging his principal's property, and then appropriating it to his own use, was, if possible, more infamous than in so appropriating moneys which had lawfully come into his possession, for in the former case he committed a double crime. This, however, does not change the legal aspect of the matter. The $40,000 was not in the eye of the law his money, but that of Mrs. Roderiguez, and when he appropriated it he was disposing of her money and not his own. So far as this application is concerned the $40,000 must be regarded as money which, though obtained by a previous fraud, was held by Caamano in a fiduciary character, and upon a trust, which the law would imply to pay it over to Mrs. Roderiguez, whose property had been incumbered to raise it. Viewed in this light, the decision in Suydam agt. Belknap, is just as applicable to the $40,000 as to the moneys previously appropriated, and I am constrained by it to hold that Caamano is entitled to his discharge.

The distinction between cases like the present one and that presented In the Matter of Brady (69 N. Y., 216), is pointed