for an injunction restraining the enforcement of the surrogate's decree. The answer consisted of numerous denials and an averment of several proceedings had in the surrogate's court.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

Q. Van Voorhis, for appellant.

Frederick W. Smith, for respondents.

HARDIN, P. J. Defendant interposed a demurrer to the com plaint, and also made a motion to dissolve the injunction. The demurrer was overruled, and an order was granted denying the motion to dissolve the injunction. An appeal was taken from the interlocutory judgment, and also from the order denying defendant's motion to dissolve the injunction. A decision was made upon the appeal, and is found reported in 11 N. Y. Supp. 319. It was held at that time that the complaint sufficiently stated a cause of action. It was also stated that, under the circumstances disclosed by the complaint, "it was necessary that plaintiff should bring the action both in his individual and his representative capacity, to obtain full relief." The judgment overruling the demurrer and the order denying the motion to dissolve the injunction were sustained. In the course of the opinion delivered in that case, it is said:

"The complaint alleges with sufficient certainty the payment of the moneys therein stated, and obviously meant that she had received more than enough out of the estate to pay her decree, and that it should be adjudged satisfied. * * * The matters alleged in the complaint could not be tried in the surrogate's court so as to secure the moneys to be set off against the defendant's claim. In such cases a party having an equitable set-off can come into this court for relief,"-citing Railroad Co. v. Haws, 56 N. Y. 175.

It must be assumed that the criticisms made upon the complaint at the trial now under review were treated by the referee as unavailing; and due deference to the decision made when the demurrer was under consideration leads us to the conclusion that the complaint sufficiently presented the facts and circumstances relied upon by the plaintiff to have awarded the relief granted by the referee upon the trial now brought in review. Laney v. Laney (Sup.) 11 N. Y. Supp. 319. Upon the first trial before the referee an opinion was delivered by him in connection with his findings, and that opinion is reported in 19 N. Y. Supp. 518. Following that opinion is the opinion delivered by Lewis, J., in the general term, which seems to approve of the course of the trial in the cases before the referee on the first occasion as well as on the second occasion; and that opinion expressly approves of the finding of the referee that the payments made by the defendant by the checks amounted to $23,650; and the conclusions reached by the referee, and the mode of reaching them, were approved in the opinion, except as to the item of $1,560, being for rent of the Elm street house, occupied by Enos Laney. The plaintiff was then given an opportunity to stipulate to deduct from the amount of his recovery that item, by way of stipulation, so as to leave the judgment for $5,612.04; and it was provided that, if the stipulation was given, the judgment for

that amount should be affirmed. The plaintiff omitted to give the stipulation, and elected to have a second trial, and the referee seems to have followed closely the doctrine laid down in the opinion reviewing his former trial.

The appellant, however, challenges the report of the referee on the ground that some parts of it are unsustained by the evidence. Upon a careful inspection of the record, it is quite apparent that the conclusions of the referee are sustained by the evidence given before him on the trial now brought in review. The mode of stating the interest and allowance upon the sundry items was the mode that was adopted on the first trial. It seems to have been approved in the opinion of Lewis, J., and the rule thus sanctioned has become the law of this case, and the method adopted ought not to be disturbed, reviewing the action of the referee under the opinion so delivered. The referee reached the conclusion that the execution issued, mentioned in the complaint, was regular, and that the levy made by the sheriff upon the property of Enos Laney was sufficient to pay the amount of the execution, and that the plaintiffs are entitled to an accounting for the "moneys loaned, advanced, and paid by said Enos G. Laney to and for said defendant, as specified in the finding of fact"; and he also reached the conclusion that ne plaintiffs were entitled to a judgment adjudging the decree of the surrogate's court, as it was modified December 27, 1888, which directed the payment by Enos G. Laney to the defendant of $5,881.30, paid, and also directed the decree to be satisfied of record. The referee also sustained the injunction restraining the enforcement of that decree. The plaintiffs have not recovered a more favorable judgment than they might have retained had they given the stipulation which they were afforded an oportunity to give by the decision of the general term when the case was decided as reported in 19 N. Y. Supp. 518.

It is insisted in behalf of the defendant that, because no formal demand was made before the commencement of this action, the plaintiff was not entitled to recover the balance found against her. This is an action in equity, and it is apparent that the recovery of the balance found against the defendant is an incident to the main objects of the action, and a careful inspection of the record seems to indicate that, at the time this action was commenced, the defendant had assumed an attitude inconsistent with the right of the plaintiff to have the balance of the account for moneys advanced to her repaid. Besides, when the action was before the court upon the hearing of the questions raised by the demurrer, the complaint as it now stands was sanctioned.

When the case was before the referee on the first occasion, he stated in the opinion then delivered that the advances to the defendant alleged in the complaint were not made on account of her distributive share; and he also stated that:

"The moneys for which the plaintiff claimed credit on the first accounting were a part of those proved in this action, and the surrogate's court expressly adjudged that they be stricken out of the plaintiff's account, because they related to transactions not involved in that proceeding, and of which the

court had no jurisdiction. In the second accounting, the plaintiff did not include advances in payments made since the first accounting, and of the same character as those stricken out in the first one. The surrogate's court has not decided whether these advances be allowed or disallowed. It has simply declined to consider the question, and this court has at both special terms and general terms approved the decision of the surrogate's court."

The view taken by the referee on the first occasion was approved of by the opinion of Lewis, J., to which reference has already been had; and it is not deemed necessary to refer further to that question to answer the contention now made in behalf of the appellant in that regard. This case differs from Neilley v. Neilley, 89 N. Y. 352, as in that case the administrator, having a claim against the estate of which he was administrator, by presenting it to the surrogate, and having it acted upon, submitted to the jurisdiction of the surrogate, and the determination made by the surrogate was then held to be a bar to a subsequent action to recover for the claim. We think the learned referee fell into an error in awarding costs against the defendant. The action has failed in some of its important aspects mentioned in the complaint. The plaintiff asked for a judgment of $5,000 for an alleged trespass in issuing an execution for the enforcement of the decree that the defendant had obtained. In that branch of the complaint the plaintiff has been unsuccessful. It was entirely reasonable for the defendant to defend, as she has successfully, against that claim. The case therefore falls within the general rule that where, in an equity action, the party seeks to recover more than he is entitled to, and does not succeed entirely, and the victory is a part to the plaintiff and a part to the defendant, the costs should be awarded to neither party. Law v. McDonald, 9 Hun, 23; Mandeville v. Avery (Sup.) 17 N. Y. Supp. 429; West v. City of Utica, 71 Hun, 546, 24 N. Y. Supp. 1075, and cases cited; Cross v. Smith (Sup.) 32 N. Y. Supp. 676, 677. Besides, when the plaintiff refused to give the stipulation authorized by the general term, and insisted upon a new trial, it cast an unnecessary burden upon the defendant, as appears by the result of the second trial. Under all the circumstances of the case, we have reached the conclusion that the report of the referee and the judg ment entered thereon should be modified by eliminating therefrom the costs of the action.

Judgment modified by striking out the award of costs of the action, and, as so modified, affirmed, without costs to either party on this appeal. All concur.

(17 Misc. Rep. 369.)

DAMMANN v. PETERSON.

(Supreme Court, Appellate Term, First Department. June 9, 1896.) DISTRICT COURT OF NEW YORK CITY-JURISDICTION-OBJECTIONS TO.

Laws 1882, c. 410 (Consolidation Act), § 1285, relating to the district courts of New York City, prescribes the district in which an action shall be brought. Section 1382 provides that, where an action is brought in the wrong district, it shall be dismissed if the objection is raised at the

trial, but that it was waived if not taken at the trial, and the court will be deemed to have jurisdiction. Held, that the objection that the action was brought in the wrong district could not be raised by demurrer.

Appeal from Sixth district court.

Action by Margaret Dammann against John Peterson on a promissory note. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.

Argued before DALY, P. J., and MCADAM and BISCHOFF, JJ. W. W. Butcher, for appellant.

W. J. Boyhan, for respondent.

PER CURIAM. The action was against the defendant as the maker of a promissory note. The defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and in his argument before the justice avowed as his sole cause of demurrer the omission of the plaintiff to allege in her complaint that one or both of the parties litigant resided within the territory comprising the Sixth judicial district, the area of the court's jurisdiction. It was claimed that the rule applicable to inferior courts requires that the facts necessary to confer jurisdiction must be alleged, and Frees v. Ford, 6 N. Y. 176; Gilbert v. York, 111 N. Y. 544, 19 N. E. 268; Bunker v. Langs, 76 Hun, 543, 28 N. Y. Supp. 210; Peck v. Dickey, 5 Misc. Rep. 96, 24 N. Y. Supp. 834,-are cited to sustain the contention. These cases relate to the jurisdiction of the county courts, which in ordinary actions is limited to cases wherein the defendant, or two or more defendants, are residents of the county at the time of the commencement of the action (Judiciary Act, Laws 1847, c. 280, § 30; Code Civ. Proc. § 340, subd. 3), and depend upon the peculiar construction of these statutes. There is no such limitation upon the jurisdiction of the district courts, which is made to depend solely upon the character of the cause of action. Code, § 3215; Consolidation Act 1882, § 1285. True, the statute prescribes with particularity the district in which the action shall be brought (Consolidation Act, § 1289), and the consequences of failure to comply with the statute in this respect are stated in section 1382 of the same act as follows:

"Judgment that the action be dismissed, with costs, without prejudice to a new action, shall be rendered in the following cases: (3) When it is

*

*

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objected at the trial, and appears by the evidence that the action is brought in the wrong district, * or that the court has not jurisdiction; but if the objection be taken and overruled, it is cause only for reversal on appeal, and does not otherwise invalidate the judgment; if not taken at the trial it is waived, and the court will be deemed to have jurisdiction."

The defendant did not object upon the trial, nor did he prove or offer to prove by evidence, that the action was brought in the wrong district. Hence the objection was waived, and the court deemed to have jurisdiction. Such is the language of the special statute relating to district courts, and the cases relied upon, construing the special statutes relating to county courts, have no relevancy to the question involved. As the county courts in the cases

cited depended upon the residence of the defendants for their jurisdiction, the plaintiffs therein were obliged to allege, and, if denied, prove, the jurisdictional facts, and that is all those cases decide; whereas in an action brought in the district courts the plaintiff is not required to allege or prove the residence of either or all of the parties within the judicial district, and the defendant, in order to raise the point, is required, not only to object upon the trial that the action is brought in the wrong district, but to make the fact appear by the evidence. The demurrer interposed was therefore unauthorized. It presented no valid plea to the jurisdiction; and, the complaint being verified, and the defendant having been duly served with the summons, the justice properly awarded judgment in favor of the plaintiff for the amount claimed. Consolidation Act, § 1383.

It follows that the judgment must be affirmed, with costs.

(7 App. Div. 366.)

ROCHESTER & KETTLE FALLS LAND CO. v. ROE. (Supreme Court, Appellate Division, Fourth Department. June 17, 1896.) CORPORATIONS-ACTION FOR STOCK ASSESSMENTS EVIDENCE.

Defendant in an action to recover an assessment on shares of stock issued by plaintiff to one R., and by him assigned to defendant, alleged as a defense that R. represented that the stock was fully paid, and that no further assessments should be made thereon; that defendant then inquired of plaintiff's officers as to whether any further payments were due on the stock, at the same time informing them that he contemplated purchasing it; that the officers replied that the shares were paid for in full, and that no further calls or demands would be made thereon; and that, relying on said statements and representations, defendant purchased the shares, with the understanding that they had been paid for in full. Held, that it was competent for defendant to testify as to the statements made by R., and the purpose for which he interviewed plaintiff's officers, as bearing on the question of whether he relied on the assumption that the stock was paid up when he purchased it.

Appeal from judgment on report of referee.

Action by Rochester & Kettle Falls Land Company against John O. Roe. Judgment was rendered in favor of plaintiff for $145.12, together with the costs of the action, and defendant appeals. versed.

Re

The complaint alleges that one Reynolds became the owner of 10 shares of the assessable stock of the plaintiff by subscription therefor, and that Reynolds transferred the stock to the defendant, and the same was transferred upon the books of the plaintiff, and a certificate therefor issued and delivered by the plaintiff to the defendant. The complaint does not allege any formal subscription by Reynolds, nor any formal written promise executed by the defendant to pay for the stock. The answer admits that Reynolds transferred 10 shares of the stock to the defendant upon the books of the plaintiff, "and that there had been paid to the plaintiff therefor, by said J. T. Reynolds, the sum of $30 per share and no more." The answer of the defendant alleges that he purchased said 10 shares of stock of said Reynolds "upon the representation, by said Reynolds and his agent, that said stock was paid for in full, and that no further assessments or demands would be made thereon; that, before making said purchase, this defendant inquired of the officers and directors of said plaintiff, at its office in the Wilder building, in the city of