PLEADING DISCHARGE IN EFFECT OF OFFER AND AC BANKRUPTCY. N. Y. COMMON PLEAS. GENERAL TERM. Louisa D. Wehle v. Johu G. Haviland et al. Decided Jan. 5, 1880. CEPTANCE UNDER SEC TION 738, CODE. N. Y. SUPREME COURT. GENERAL Decided December, 1879.. defendant, under section 738 of the Code, Where the court below permits the filing of a supplemental answer setting up discharge in bankruptcy, but upon such terms and conditions as make it impossible for defendants to comply, the court on appeal will modify the terms and conditions to such an extent as seems to be meet to the appellate court. Appeal by defendants from order of Special Term permitting them to The plaintiff, in 1877, brought an serve supplemental answers setting action against the firm of Silliman up discharge in bankruptcy, but & Co. to recover about $12,000 for upon terms and conditions with various notes and drafts made by which they are dissatisfied. C. Wehle, for plff. that firm. Among these notes and drafts was described a note made Fullerton, Knox & Crosby, for by Silliman & Co. to the order of defts. the defendant. The complaint Held, That upon the facts and law averred that this note was wholly presented to the court, the condi- unpaid, except the sum of $122, tion attached to the privilege of and asked to recover for this note, pleading the discharge was impos- with the others, less said payment. sible of performance on the part of Silliman & Co. denied that plaindefendants. That the order ap- tiffs had any claim upon this note pealed from should be modified by against them, and averred that the striking out the condition imposed note was given by them to plaintiffs on defendants, and substituting as collateral security for claims therefor as a condition of granting other than those claimed by plainthe motion, the payment by defendants of all plaintiff's costs and disbursements in the action before and after notice of trial, and the further condition that defendants stipulate to waive all costs accrued up to this date if they suceced in obtaining judgment herein on their plea of discharge in bankruptcy. Opinion by J. F. Daly; Beach, J. and Daly, Ch. J., concurred. tiffs, which had been paid. Accompanying their answer was an offer of judgment made by Silliman & Co. under sec. 738 of the Code, for the amount claimed by plaintiffs in the complaint, after deducting this note. The plaintiffs accepted this offer, and entered judgment upon it against Silliman & Co. for $11,222.27. The present action is brought A member of a firm, who was also a trader on against Mark, the endorser of the note, and the question is whether the judgment against Silliman & Co., under the circumstances under which it was recovered, bars its recovery against the endorser. his own account, had a claim against the firm for goods sold. Both became insolvent and both made assignments for the benefit of their creditors. Held, That the assignee of the partner could not be allowed to prove his claim against the firin and share in the distribution of its assets until the other firm creditors had been paid in full. Held, That the Legislature could not have intended by sec. 738, after an acceptance of the offer made by a defendant for a less sum than the entire claim, that a plaintiff should & J. P. Derrenbacher. Appeal from an order of the County Court, made on the accounting of the assignees of the firm of J. be permitted to sue for the rejected John & John P. Derrenbacher portion; that if the claim had been were partners from January, 1873, submitted to a jury, and they had to December, 1877, dealing in grofound against the plaintiffs upon the ceries and supplies. During the issue raised as to the note in ques- same time John was a dealer on his tion, it would have been a case individual account in flour, feed and where the judgment would have grain, and sold such articles to the been conclusive as between plaintiffs firm, and received payments from and Silliman & Co. that the note time to time on account thereof. was involved; that it was, in fact, On the 13th of December, 1877, there paid; that the admission of plain- was due John from the firm the tiffs by the acceptance of the offer sum of $11,281.03. On that day stands in the place of a verdict of both John and the firm of J. & J. jury upon the entire complaint; P. Derrenbacher, being insolvent, that if Silliman & Co. were dis- made assignments in trust for their charged, being the makers, Mark, respective creditors. Upon an acas endorser, would not be liable; counting had by the assignees of the that the judgment record was a firm, the above balance of account complete defense to the defendant was proved and allowed as a debt Mark. against the firm, entitled to share in the distribution of the assets of the firm in the same manner as other firm debts. The creditors appeal from the order making such allowance, and insist that on the facts shown, John, an insolvent partner of an insolvent copartnership, cannot claim pay upon such indebtedness until the other joint creditors of the copartnership have been fully paid and satisfied. Judgment reversed, and new trial granted, costs to abide event. Opinion by Barnard, P. J. ASSIGNMENTS FOR CRED ITORS. PROOF. N. Y. SUPREME COURT. GENERAL In re accounting of Anthony Decided Nov., 1879. J. N. Fiero, for applt. Held, That the order was erro neous. Opinion by Boardman, J.; Learned, "When all the parties be- P. J., and Bockes, J., concur. ASSESSMENTS. COSTS. N. Y. COURT OF APPEALS. In re petition of Jetter to vacate assessment. Decided Nov. 18, 1879. A proceeding under chap. 338, Laws of 1858, to vacate an assessment, is a'special proceeding. In a proceeding to vacate an assessment, judg ment was rendered vacating the assessment with the usual costs of an action. No appeal was taken therefrom, but about two years thereafter a motion was made to vacate the judgment and retax the costs. This was denied, and on appeal the General Term reversed so much of the judgment as allowed costs, under §3, chap. 270, Laws of 1854, on the ground that it was not a special proceeding. Held, Error. come bankrupt, the general rule is that the separate estate of one partner shall not claim against the joint estate of the partnership in competition with the joint creditors, nor the joint estate against the separate estate in competition with separate creditors." Collier on Partnership, § 948. There are two exceptions to this general rule, one arising out of fraud &c., not applicable in this case, and the other when there are two firms dealing with each other and some of the parties are the same, as in Cole v. Reynolds, 18 N. Y., 74. The same rule is laid down in Pars. on Part., pp. 499, 500, and in Gow on Part., ch. 5, § 3, pp. 290, etc., of 3d Am. Ed.; 9 Vesey, 589; 1 Rose, 305; id., 438, and 2 Ves. & Bea., 212. The prin- This was a proceeding under ciple upon which this doctrine is chapter 338, Laws of 1858, to vafounded is this: the creditor part- cate an assessment in the City of ner, if solvent, could not claim any- New York. A judgment was renthing against the copartnership dered vacating the assessment with assets until its creditors, who are the usual costs of an action. No apalso his creditors, are fully paid, and peal was taken therefrom. About hence his creditors upon his insol- two years afterwards, the City vency can take no greater rights moved, at Special Term, to vacate the than he had. Our own reports judgment and retax the costs. This seem quite destitute of authorities motion was denied. On appeal to upon the precise question involved. the General Term, so much of the Hayes v. Bement, 3 Sandf., 394, judgment as gave costs as in a however, recognizes the rule as special proceeding, under section 3, stated. The principle is also sustained in White v. Hacket, 20 N. Y., 178, in which Judge Gray says: "Had Schenck been a general partner, the indebtedness to him would have been postponed until the creditors of the firm should be satisfied." Order, so far as it allows the claim, reversed. of chapter 270, Laws of 1854, was Moody B. Smith, for applt. Held, That the proceeding under the Act of 1858, (chap. 338,) is a special proceeding, and the order of the Special Term allowing costs under the Act of 1854 was discretionary, and as that order was not appealed from, it was not before the General Term for review, and its fusing to quash is not appealable to the Court of Appeals The plaintiff in error was convicted in the Court of Sessions of the crime of perjury. A new trial was granted on newly discovered modification on the ground of a evidence, and on the merits. On want of power was erroneous. Abb., 356. 18 motion of the District Attorney, the indictment was sent by order of the In re Dodd, 27 N. Y., 629, ex- Sessions to the Oyer and Terminer, plained and distinguished. and the plaintiff in error admitted to This proceeding was not an ac- bail. A writ of certiorari was allowed tion but a remedy, and must there- by the Special Term on application fore be a special proceeding. It may of the District Attorney removing be regarded as a summary proceed- the indictment into the Supreme ing to remove a cloud upon the title. Court. The plaintiff in error moved While it has all the elements of a liti- at Special Term to quash the writ gation in a court of justice, it is not of certiorari. The motion was dean ordinary litigation, because the nied, and this ruling was affirmed by proceedings are special as pre- the General Term on appeal therescribed by statute. It is not a moto. tion under the Code. New Code, S$ 767, 768; 55 N. Y., 145. Order of General Term, modifying order of Special Term, reversed, and that of Special Term affirmed. Opinion by Church, Ch. J. All concur, except Folger, J., absent. JURISDICTION. CERTIORARI. APPEAL. N. Y. COURT OF APPEALS. Jones, plff. in error, v. The People, defts. in error. Decided Nov. 25, 1879. J. P. Butler, for plff. in error. Held, That the Supreme Court had jurisdiction under the Constitution and laws of this State to issue the writ of certiorari complained of. Const., Art. 6, § 6; New Code, § 217; 1 Chitty's Cr. Law, 374; 4 Black. Com., 321, Laws of 1847, p. 324, § 17; 7 Cow. 118, 141; 3 Park. Cr. R., 187; 12 Pick., 498; 48 Penn. St., 56; 21 Barb., 282. It is discretionary with that court after having obtained jurisdiction to quash the writ upon cause shown, or remand the case to the Oyer and The Supreme Court has jurisdiction under the Terminer upon cause shown, or Constitution and Laws of this State to issue a writ of certiorari to the Oyer and Terminer to remove an indictment from that court. After having obtained jurisdiction it is discretionary for the Supreme Court to quash the writ, or remand the case on cause shown, or proceed to its disposition, and an order re proceed to its disposition as in other cases pending before it; that the order appealed from being discretionary, it was not appeable. Appeal dismissed. Opinion by Church, Ch. J. All concur, except Folger, J., absent, in respect thereto, and to appoint and Miller, J., not voting. REMOVAL FROM OFFICE. EVIDENCE. JUSTICE'S JUDGMENT. persons to care for the streets, etc. In pursuance of such authority, ordinances had been passed providing for the appointment, annually, of Street Inspectors who should hold office, unless sooner removed, for one year; their compensation to be fixed by the Common Council, and to be payable quarterly. On the Hiram H. Dorr, respt. v. The 8th of March, 1870, the amount was City of Troy, applt. N. Y. SUPREME COURT. GENERAL fixed by resolution at $600 per Martin Kelly, respt., v. The City annum. Their duties were also preof Troy, applt. Decided Nov. 1879. scribed by ordinance, and they became officers of the City. In May, 1870, the Charter of the City was Plaintiff's assignors were appointed street inspectors of the City of Troy by the Common amended, and by Tit. 2, sec. 6 of ch. Council of said City, under the City Charter 598, the office of Street Inspectoand ordinances passed in pursuance thereof, was abolished. The duties thereproviding for the appointment annually of tofore discharged by plaintiff's asr street inspectors, who should hold office for one year, unless sooner removed. By subsequent resolution their pay was fixed at an annual sum, payable quarterly. The office of street inspector having been abolished by signors were afterwards imposed upon other persons, of which such assignors had notice, as well as that their services were no longer required. No services were thereafter rendered by them. Their first an amendment of the Charter before the expiration of a year from the date of such appointment, Held, That the inspectors were thereby removed from office, that their ap-quarter's salary was duly paid by the pointment was not an appointment or con tract for a year, and that they were not enti tled to pay for the unexpired part of the year. In proving a justice's judgment by the oath of the justice, his docket must be produced and verified by him. Mere parol evidence of its contents is inadmissible. Appeal from a judgment recovered by each plaintiff, and from an order in each case, denying a motion for a new trial upon the minutes. City. After the second quarter had expired, judgments for that quarter's salary were obtained by collusion against the City, and these were afterwards paid. These actions are now brought for the remaining two quarters' salary, and it is claimed, among other things, that the judgments previously obtained bar or estop the defendant from denying its liability. It was sought Plaintiff's assignors were appoint- to prove these judgments by the ed street inspectors March 8, 1870, oath of the justice before whom by vote of the Common Council. they were obtained. His docket By the Charter then in force the was not produced. He testified that Common Council were Commission- he rendered the judgments against ers of Highways for the City, and the City, and that the only entries were authorized to pass ordinances of the judgments that he made were |