Matter of Cohen & Company. transferred a large portion of his property to his wife without consideration. It cannot be inferred from these facts, without further proof, that Reed had either disposed of any part of this sum of money or that he intended to do so, to defraud any of his creditors, and without that inference being supported, the plaintiff was not entitled to an order for his arrest (Hoyt agt. Godfrey, 88 N. Y., 669). In this respect the case is distinguishable from Hitchcock agt. Peterson (14 Hun, 389), where positive fraud was found to be sustained against both of the defendants. To entitle a party to an order of arrest, a reasonably plain case must be made out. That has been so frequently held as to require no reference to the authorities supporting the principle. Such a case was not made out against the defendant Reed, and the order from which the appeal has been taken should be reversed, with ten dollars costs and also the disbursements, and an order made vacating the order of arrest. DAVIS, P. J., and BRADY, J., concurred. N. Y. COMMON PLEAS. In the Matter of the Assignment of JACOB S. COHEN & Co. to SAMUEL P. HINMAN. Removal of assignee - What is proper notice in proceedings for removal, where there are three assignors - Practice. In a proceeding for removal of an assignee who has misconducted himself, where there are three assignors, one of whom has left the state, notice to one assignor is properly notice to all; though the better course would be to give the statutory five days' notice to the two within the state, in the ordinary way and to serve the absent assignor by depositing a notice in the post-office, addressed to him at his last known place of residence giving double the time. Special Term, November, 1885. Matter of Cohen & Company. DALY, C. J. Where a statute declares what is to be done in giving notice, it must be strictly followed. But except in those particulars which the statute specifies, everything else in reference to the notice is under the control of the courts. All that the statute here specifies is that due notice of not less than five days of the motion to remove the assignee is to be given to the assignor. Where the term due notice is used in a statute, it is generally understood as referring to the length of time that it is to be given (Wade on the Law of Notices, sec. 1324), and it has no greater signification here, where the length is fixed by the statute. The act simply provides for a notice to the assignor, but in this case there are three assignors, one of whom has left the state and whose whereabouts are unknown, fürther than that he is somewhere in Florida. The only interest the assignors have under the assignment is the possibility that something may remain after the payment of their creditors to which they would be entitled — an interest which would be a joint interest, and where parties have a joint interest as in the case of partners, service of notice upon one has been regarded as equivalent to notice to all (1 Wood's Collyer on Partnership, 715; Brown agt. Turner, 15 Ala., 832; Carman agt. Townsend, 6 Wend., 206). But as this is a statutory provision there may be some doubt as to whether this rule would apply to it, and I think the better course is to hold that the notice should be given to each of the assignors. As two of them are within the state, it can be served upon them in the ordinary way, and as respects the remaining one, who has left the state, and whose precise whereabouts are unknown, the service may be such as the court shall direct, there being nothing in the statute as to the service of notice, except that the time is to be at least five days. We would not, in such a case, be justified in applying the provision made in the act for giving notice to creditors residing out of the state, for that notice is by an advertisement once a week for six weeks; while the provision under con Matter of Cohen & Company. sideration here is for a notice of not less than five days, and the delay incurred for such a length of time as six weeks, might be a very serious matter in cases where the assignee. had misconducted himself, and where his prompt removal was essential to preserve the assigned property and secure the faithful administration of the trust. As the statute has made no provision for a case like this, of an assignor who has left the state and yet requires notice, I think the proper course is to, follow as nearly as possible the provision of the Code respecting the service of notices and other papers in actions; that is, by depositing the notice, as provided in section 797, in the post-office, addressed to the absent assignor at his last known place of residence, giving double the time as required by the next section, which would in this case be ten days. It is true that such a service is a mere formality, but when the party to be served has left the state and his whereabouts are unknown, it is all that the circumstances of the case will admit of. As the statute requires that notice of the motion shall be given, and has not in a case like this provided how it is to be served, all that the court can do in compliance with the statute is to direct the kind of notice to be given, even though it be but a mere formality; for it is very plain that the statute did not intend that creditors should be deprived of the right which it gives them, to have an assignee removed who has misconducted himself or is incompetent, because notice cannot be brought home to the knowledge of an assignor who has left the state and whose place of abode could not be ascertained after diligent inquiry. Timerson agt. Timerson. SUPREME COURT. MARY I. TIMERSON agt. CHARLES W. TIMERSON. Divorce -Adultery — Complaint — Demurrer — When condonation of adultery by subsequent cohabitation with knowledge not a bar to an after-brought action for divorce for such adultery. Condonation of adultery by subsequent cohabitation with knowledge does not bar an after-brought action for divorce predicated on such adultery, where the condonation is upon the promise by the guilty party (the husband) that he would in all things thereafter treat his wife kindly and in a proper manner, and would be in all things a good and affectionate husband to her, when such promise has been violated Cayuga Special Term, July, 1884. DEMURRER to complaint for divorce on the ground of adultery. L. E. Warren, for defendant. F. D. Wright, for plaintiff. ANGLE, J. — The question on this demurrer is whether condonation of adultery by subsequent cohabitation with knowledge bars an after-brought action for divorce predicated on such adultery, where the condonation is upon the promise by the guilty party (the husband) that he would in all things thereafter treat his wife kindly and in a proper manner, and would be in all things a good and affectionate husband to her, and which promise he has violated. The Code of Civil Procedure (sec. 1758) declares that the plaintiff is not entitled to a divorce, although the adultery be established, where the offense charged has been forgiven by the plaintiff, and that the forgiveness may be proved, either affirmatively or by voluntary cohabitation of the parties with knowledge of the fact. The language of the Revised Statutes (2 R. S., 145, sec. 145, sub. 2) is that the court may deny a divorce in such case. Counsel have cited and exam tice. Timerson agt. Timerson. ined many authorities as to whether condonation, evidenced by cohabitation with knowledge, is, by legal inference, conditioned upon subsequent kind and proper treatment. The argument in favor of such an implied condition is stated by chief justice SAVAGE in Johnson agt. Johnson (14 Wend., 642, 643, 644), while the argument opposed is set forth in the opinion of senator TRACY in the same case (pages 646, 647). A majority of the court of errors agreed with the chief jusThis case of Johnson agt. Johnson has been subject to some criticism, the above question having been decided by but one majority for the reversal of the decision of the chancellor, but it is a binding authority, I think. The case of King agt. Baldwin (17 Johns., 384) was also a case where the decision of the chancellor had been reversed by a majority of Afterwards there were dicta condemning the rule in King agt. Baldwin, and the question of its authority came before the court of appeals in Remsen agt. Beekman (25 N. Y., 552), and the two judges (WRIGHT and GOULD) writing opinions (pages 556, 561), regard King agt. Baldwin as authority settling the rule involved in the case. one. The present case however involves another question than Johnson agt. Johnson. There the question was whether the law raised a certain implication; here the complaint avers the existence of the fact which was in Johnson agt. Johnson sought to be implied, viz., that the husband actually promised the wife, as part of the agreement, that he would thereafter treat her kindly and in a proper manner. The law is lenient towards the wife in regard to condonation by cohabitation (Harnett agt. Harnett, 55 Iowa, 48). My conclusion is that the violation by the defendant of the conditions of the condonation revives the wife's right of action for his previous adultery, or rather that the alleged condonation is not a bar to such action. Judgment ordered for plaintiff on demurrer to complaint, with leave to defendant to answer on payment of costs of demurrer. |