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and 102 New York State Reporter determine whether it was for their best interest that they should be delivered into the custody of their father. If they were of a proper age to determine that matter for themselves, or to have their wishes consulted, it would have been the duty of the court to give full consideration to their wishes. But the discussion is displaced when that element is introduced into the case as the determinant factor, for here the parent's right depends, in the first instance, upon the agreement the asylum made with him, either actual or implied, at the time the children were given into its custody, that they would be restored to him at the expiration of the two years.

For these reasons, I am of the opinion that the order appealed from should be affirmed with $10 costs and disbursements.

O'BRIEN, J., concurs.

(57 App. Div 201.)

MCGUIRE v. BAUSHER.

(Supreme Court, Appellate Division, Second Department. January 31, 1901.) SHERIFFS AND CONSTABLES-EXECUTION-RENEWAL BY OFFICER-Loss-LIABILITY-EVIDENCE-SUFFICIENCY.

Code Civ. Proc. § 3221, provides that no property is exempt from levy and sale on execution issued on a judgment for a servant's wages, and if the execution is returned unsatisfied an execution against defendant's person may issue. An officer received an execution issued on a judgment for wages of a domestic servant, but renewed it at the judgment debtor's request, and afterwards both that execution and one against the person were returned unsatisfied. In an action against such officer, plaintiff's attorney testified that, on the day the first execution issued, the debtor had more than property enough to satisfy the execution, which he said belonged to him. Held sufficient to establish plaintiff's damages by reason of the officer's renewal of the execution.

( Appeal from municipal court, borough of Brooklyn, Second district.

Action by Annie McGuire against William H. Bausher. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Archibald Foote Clark, for appellant.
J. P. McGee, for respondent.

GOODRICH, P. J. On a former appeal in this action (52 App. Div. 276, 65 Y. Y. Supp. 382) we held that where the defendant, as marshal, had an execution in his hands, and extended the judgment debtor's time for the payment of the judgment beyond the time fixed for the return of the execution, and, without consultation with the plaintiff, procured its renewal, he was liable for the damages sustained by the judgment creditor. The evidence at the last trial showed that the plaintiff on January 30, 1900, recovered a judgment in the municipal court for $25.37, for wages as a domestic servant, against one Chrysler. By section 3221 of the Code of Civil Procedure, “no property of the defendant is exempt from levy and sale by virtue of an execution issued” upon such a judgment, and if the execution is returned unsatisfied an execution against the person may be issued. Execution was issued to the defendant on February 5th, which was renewed through the procurement of the defendant on February 25th, and returned by him unsatisfied on March 17th. An execution against the person was issued to the defendant on March 20th, and returned not satisfied on April 28th. It appeared by the defendant's testimony that he saw Chrysler only once, and that this was about two weeks after the issuing of the first execution, when Chrysler asked him to delay for a week, when he thought he would be "able to straighten the matter out," and the defendant assented. Subsequently he tried to see Chrysler, but was unable to find him. Mr. Clark, the plaintiff's attorney, testified that on February 5th, the day of the issuing of the execution, he saw "Mr. Chrysler in possession of more than enough property to satisfy the execution on that day.” On cross-examination the fact appeared that Chrysler told Mr. Clark that the property belonged to him, and no motion was made to strike out the testimony. This evidence, though slight, was sufficient to establish the plaintiff's damages by reason of the defendant's renewal of the execution. The judgment must be reversed.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event. All concur.

(57 App. Div. 399.)

AMERICAN PRESS ASS'N V. BRANTINGHAM et al.

(Supreme Court, Appellate Division, First Department. January 25, 1901.) 1. INTERPLEADER-Right to CORPORATION Stock.

Where the owner of corporate stock has the corporation assign it to one person, and another afterwards establishes a right thereto in an action against the owner, and both claim the stock from the corporation, and the person to whom the stock was assigned threatens to sue the corporation, the latter may maintain a bill of interpleader against the rival claimants to determine their rights and to restrain the threatened

litigation. 2 SAME-PARTIES.

Where a corporation brings interpleader to determine whether the person to whom a certificate of its stock has been assigned at the request of the owner thereof or a person who has established a right thereto in an action against the owner is entitled to such stock, the original

owner is not a necessary party thereto. 8. SAME.

Where a corporation brings an interpleader suit to determine whether the person to whom a certificate of its stock has been assigned at the request of the owner thereof or the person who has established a right thereto in an action against the owner is entitled thereto, an order requiring the corporation to deposit a certificate of the same amount of stock with the clerk to await determination of the suit is erroneous, and will be modified by restraining a transfer of the certificate held by the

defendant, and by directing him to deposit it with the clerk. Appeal from special term, New York county.

Interpleader by the American Press Association against May Thorne Brantingham and another to determine conflicting claims of defendant to certain stock of the plaintiff, and to restrain threatened litigation. From an order restraining the defendant the Westchester and 102 New York State Reporter Trust Company from commencing suit, it appeals. Order modified and affirmed on condition of the filing of a new bond by plaintiff.

Argued before VAN BRUNT, P. J., and RUMSEY, MCLAUGHLIN, PATTERSON, and O'BRIEN, JJ.

Daniel S. Remsen, for appellant.
Charles A. Brodek, for respondent American Press Ass'n.
Burton T. Beach, for respondent Brantingham.

RUMSEY, J. It appears from the papers that the plaintiff is incorporated under the laws of the state of New York; that before the 19th of September, 1899, one Joseph Thorne was the owner of 300 shares of the capital stock of the plaintiff, represented by a certificate for that amount; that ou the 19th of September, 1899, the plaintiff issued to Eunice E. Huff, the assignee of Joseph Thorne, a certificate for the 300 shares of stock which had formerly belonged to him. Miss Brantingham, claiming to be the owner of the stock, brought an action against Huff to establish the ownership, which resulted in a judg. ment in favor of Miss Brantingham. In the meantime it appears that Huff had assigned this stock to the Westchester Trust Company. That company had demanded the issue of a new certificate, and that the stock should be transferred to it on the books of the plaintiff; and Miss Brantingham has also advised the plaintiff of her ownership of the stock, and claimed an accounting for the dividends which had accrued upon it, which are considerable in amount. The plaintiff brings this action to establish the rights of the parties, claiming no interest adverse to either party, but asking that it may be protected from these adverse claims, and that Miss Brantingham and the Westchester Trust Company be directed to interplead between themselves for the purpose of determining their conflicting rights. This motion was made to restrain the trust company from bringing an action against the plaintiff for the conversion of the stock or to establish its rights therein, and for directions as to what should be done with the dividends during the pendency of the action. The order restrains the Westchester Trust Company from bringing an action relative to the 300 shares of stock, or to the dividends thereof, upon condition that the plaintiff should give an undertaking in the sum of $250 conditioned to pay to the defendants all damages, not exceeding that sum, which they might sustain by reason of the injunction, and, upon the plaintiff transferring and issuing a certificate for the 300 shares to the clerk of the court, and paying to him the sum of $300 represent. . ing the dividends which have accrued, with interest from the time those dividends became payable, and upon further condition that the plaintiff pay into court all dividends that might accrue upon the stock, to abide the further judgment and order of the court. From this order the appeal is taken. We are quite clear that, as the plaintiff, who is substantially a mere stakeholder in this action, is confronted with two adverse claims until the question of ownership has been decided, this is a proper case for an interpleader. It is objected that Huff, the assignee, should be made a party to the action. Without determining that question, it is sufficient to say that, as it appears

that the Westchester Trust Company has an assignment of this stock, and that as Miss Brantingham makes a claim upon them also, these facts are sufficient to warrant the plaintiff to bring these two adverse claimants into court to establish their rights against each other. If it should be necessary or roper, or if the Westchester Trust Company should desire, to bring Huff into the controversy to settle the relative rights between her and the trust company, it is open to the company to do so for that purpose, and upon that motion such directions would be given as justice requires; but, although the presence of Huff may be useful to the Westchester Trust Company, yet, so far as the plaintiff is concerned, it does not appear that she is a necessary party to the action, and that she is not in the action is not a sufficient reason why it should not have relief. But we think that the order as made is altogether too broad. If the plaintiff should issue to the clerk of the court the certificate for the 300 shares of the stock, that certificate would not represent the certificate now in the hands of the Westchester Trust Company, and, so long as that company still retains the certificate, there is no reason why it should not transfer it; and the result would be that for the same stock there would be two different and separate certificates, and the plaintiff would be put to serious inconvenience hereafter in attempting to settle the rights of the owners. The order should not have provided for the issue of another certificate, and should be modified by restraining the Westchester Trust Company from making any transfer of the certificate in suit during the pendency of the action, and providing that the certificate should be deposited with the clerk of the court to abide the result of the action, and, as so modified, should be affirmed, without costs to either party in this court. But, as the modification which we make goes to the substance of the injunction, it is quite possible that the sureties upon the injunction as ordered by the special term might be released by this serious modification. For that reason the affirmance must be upon condition that the plaintiff shall give a new undertaking in the same amount as the original one.

Order modified as directed in opinion, and, as modified, affirmed, without costs; such affirmance to be upon condition that plaintiff give a new undertaking as directed in opinion. All concur.

(57 App. Div. 204.)

FRENCH V. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. January 31, 1901.)

1. DAMAGES-EXCESSIVE VERDICT.

Plaintiff, a man 70 years old, was thrown down by the sudden starting of a street car, and sustained painful injuries. There was no evidence of his earning capacity, except that he had been able to support himself. Plaintiff testified that he suffered pain in his side from the injuries at the time of the trial, 3 months after the accident. Evidence as to whether his side showed a depression at the point of contact, indicating a continuation of the difficulty, was conflicting. Held, that a verdict for $400 was not excessive.

and 102 New York State Reporter 2. SAME-PHYSICAL EXAMINATION OF PLAINTIFF.

Defendant, in an action for personal injuries, is not entitled to demand that the court examine the plaintiff physically to determine a dispute between opposing physicians as to the extent and character of the injury. Appeal from municipal court, borough of Brooklyn.

Action by Alonzo French against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Sheehan & Collin, for appellant.
Sanders Shanks, for respondent.

WOODWARD, J. The appellant practically concedes upon this appeal a liability, but urges that there was no evidence to warrant an award of $400, and that the trial court erred in refusing to inspect the plaintiff physically. The evidence, which is undisputed, shows that the plaintiff, a man 70 years of age, while attempting to get onto one of the cars of the defendant at the New York end of the Brooklyn Bridge, was thrown down, and sustained a painful injury to his side, by the sudden starting of the car. Plaintiff was engaged in selling glassware on commission for several different houses, but there was no evidence of his earning power, except that it may be inferred from the testimony that he had been able to care for himself. After the accident he went to a hospital in New York, where the doctor prescribed the use of a liniment, and subsequently he entered the hospital of the Kings county almshouse, where he remained for a period of about two months, because, being unable to work, he had nowhere else to go. He testified that he was in pain at the time of the trial of the action from this injury, the trial occurring some three months after the accident. There was a conflict of evidence upon the ques. tion of whether the plaintiff's side showed a depression at the point of contact, indicating a continuation of the difficulty, and the amount of the judgment indicates that the trial court found in favor of the plaintiff's contention upon this point. Taking this view of the case, we are not prepared to say that $400 is an excessive judgment, and we do not conceive it to be error on the part of the trial court to refuse to make examination of the plaintiff's person. The burden of establishing the injury was upon the plaintiff, and we are satisfied that there was evidence sufficient to support the decision of the court below, and that the defendant had no right to demand that the court examine the plaintiff to determine a dispute between opposing doctors. If there are any authorities in support of this contention, defendant's counsel have not called the attention of the court to them, and, in the absence of such authorities, the judgment of the court below should be affirmed. The judgment appealed from should be affirmed, with costs.

, . All concur.

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