VAN HOESEN, J. I am in favor of affirming the judgment. There is no clear and unmistakable fraud on the part of the assignors. The charge of fraud rests upon inferences, suspicions, and computations. As those do not make a strong case, we are asked to draw an unfavorable conclusion from the fact that the wives of the assignors were not called as witnesses. We see no reason to suspect that the assignors have suppressed testimony that was needed to explain their acts, and remove a well-grounded presumption of fraud. The testimony of Mr. Phraner, one of the assignors, was satisfactory to the referee, and I see no reason why it ought not to have been so. I am in favor of affirming the judgment upon the report of the referee. All concur.

WEBB et al. v. OSBORNE.
SIMMONTON v. SAME.

(Common Pleas of New York City and County, General Term. December 2, 1889.) 1. SUPPLEMENTARY PROCEEDINGS-EXTENSION OF RECEIVERSHIP-FILING Order.

Under Code Civil Proc. N. Y. § 2468, providing that the title to the judgment debtor's property shall vest in the receiver, in supplementary proceedings, from the time of filing in the county clerk's office of an original order of appointment, or an order extending the receivership, the title to the judgment debtor's land vests in the receiver on his filing for record in the county clerk's office the order extending the receivership, though the original order of appointment was not so filed. 2. SAME RECEIVER OF LAND-RIGHTS OF DEBTOR.

Since the rule that a creditor should sell the judgment debtor's land on execution, and not seek to collect his judgment by means of supplementary proceedings, exists to save the judgment debtor's right of redemption, he cannot complain, where he has formally consented to an order extending the receivership to the land in question.

Appeal from special term.

Supplementary proceedings in actions by James Webb and another against Thomas Osborne, and by William J. Simmonton against the same defendant, in which proceedings Ezekiel Fixman had been appointed receiver of Osborne's property. From an order vacating a previous order that the tenants of property formerly belonging to Osborne attorn to the receiver he appeals. The appellant is a receiver, in supplementary proceedings, of the abovenamed Thomas Osborne. He was originally appointed by order of this court made in the action first above entitled, and dated March 4, 1886. This order was filed with the clerk of this court the same day. On March 11, 1886, the appellant, as receiver, gave a receiver's bond, as required by law, which was duly approved by a judge of this court, and filed in the office of the clerk of this court. Said order of March 4, 1886, was not filed in the office of the clerk of the city and county of New York until May 6, 1887. On August 19, 1886, an order was duly made in supplementary proceedings founded upon the action second above entitled, extending the receivership of Mr. Fixman to said second action. Said order of August 19, 1886, was granted upon the written consent of the attorneys for the defendant and judgment debtor, who appeared upon the application, and upon the same day was duly filed in the office of the clerk of this court, and upon the 3d day of March, 1887, was duly filed in the office of the clerk of the city and county of New York. At the time of the granting of the original order in the first action appointing Mr. Fixman receiver, and at the time of the granting and filing in the office of the said county clerk of the order of August 19, 1886, in the second action, extending such receivership, the above-named Thomas Osborne was the owner of a piece of real estate known as the “Osborne Apartment House." Between the date of the filing and recording in the county clerk's office of said order extending the receivership, and the date

of the filing and recording in said office of said original order appointing the receiver, to-wit, on or about April 20, 1887, said Thomas Osborne conveyed said real estate by deed to one John H. Taylor. On the 24th day of October, 1888, an order of this court was made and entered, entitled in both of said actions, directing “that each and every one of the tenants occupying apartments in the premises mentioned and described in the said petition, and known as the Osborne Apartment House,' * * * attorn to the said Ezekiel Fixman, as such receiver, and paid to him their rents for the apartments occupied by them, respectively, as and when the same become due and payable.' Subsequently, and on or about the 22d day of November, 1888, by order duly made and entered in this action, and dated that day, the order last referred to was vacated; and from such last-named order, vacating said order of October 24, 1888, this appeal is taken.

Argued before LARREMORE, C. J., and VAN HOESEN, J. A. H. Stoiber and Nathaniel C. Moak, for appellant. son, for respondent.

William H. Hew

LARREMORE, C. J. I have stated above all the facts which seem to me to have any material bearing upon the present controversy. The respondent claims that, because the original order appointing the receiver was not filed in the county clerk's office until after the execution and delivery of the deed from the judgment debtor to John H. Taylor, the receivership of Mr. Fixman never applied to the real estate in question. But the order extending such receivership was duly filed in said county clerk's office before the making of said deed, and, under the circumstances of this case, I think such filing was sufficient for all purposes of vesting the receiver with the legal title to the Osborne apartment house. Section 2466 of the Code provides that, when a receiver has already been appointed, the judge, instead of appointing another receiver, must make an order extending the receivership. There is no doubt but that Mr. Fixman was legally appointed in the first suit. The original order appointing him was duly made, and, together with his bond, filed in the office of the clerk of this court. In my judgment, this constitutes a valid appointment, within the meaning of section 2466, regardless of the fact whether or not the receiver completely qualified in the first suit by filing such original order in the county clerk's office. The section then proceeds: "Such an order gives to the judgment creditor the same rights as if a receiver was then appointed upon his application." The following section directs that an order appointing the receiver or extending the receivership shall be filed in the county clerk's office. As far as the form of this language indicates anything, the intention would seem to be that an order of original appointment and one extending a receivership were of co-ordinate authority, and that the tiling of either of such orders would accomplish the result of a legal qualification on the receiver's part. This theory of construction is strengthened by the similar language of section 2468, which provides that the title of the judgment debtor's property shall vest in the receiver from the time of the filing of an original order of appointment, or an order extending the receivership. There is no express language requiring the original order to be filed with the county clerk before the order extending the receivership shall become valid. On the contrary, the purpose appears, by clear implication, from all the sections referred to, to make the filing of such order of extension in all essential respects an equivalent to the filing of the original order, and not a mere concomitant thereof. My conclusion is that, under section 2468, the real property of the judgment debtor became vested in the receiver on the 3d day of March, 1887, when the order extending the receivership was filed in the county clerk's office, and that the subsequent deed by the judgment debtor conveyed nothing. It follows that the order directing the tenants to attorn and pay rent to the receiver was properly granted, under rule 78.

The point has been made on behalf of the appellant that the granting of such order was error, because, when a judgment debtor is seised of real estate, the proper course for the creditor to pursue is to issue execution against and sell the same, and not to seek to collect his judgment out of the rents through a receiver. The cases of Bank v. Martin, 2 N. Y. Supp. 315, and Bunn v. Daly, 24 Hun, 526, are cited in support of this contention. But in both of these cases the application before the court was to appoint a receiver, and not to extend aid to a receiver already appointed. The grounds for the principle laid down in such authorities are stated in Bank v. Martin, supra, as follows: "If the plaintiff should be permitted to procure the appointment of a receiver, and thus vest the title of the real estate of the judgment debtor in such receiver, it could be sold, and the judgment debtor deprived of the right of redemption which is given to him in case of a sale by execution. It was the duty, therefore, of the plaintiff to have caused the house and lot to be sold on execution, thus exhausting its remedy by execution before resorting to these proceedings." It thus appears that the reason for the rule that plaintiff shall exhaust his remedy by execution before proceeding against the property by means of a receiver is that, if the other course were adopted, a judgment debtor's right to a redemption might be taken away. Such rule, therefore, exists for the judgment debtor's benefit, and to protect his strictly legal rights. It can have no relevancy or force in the case at bar, because here it expressly appears that the order extending the receivership was formally consented to on the judgment debtor's part. The order appealed from should be reversed, with costs.

OEHME v. COOK et al.

(Common Pleas of New York City and County, General Term. December 2, 1889.) MASTER AND SERVANT-DEFECTIVE APPLIANCES-EVIDENCE.

In an action by a servant for personal injuries caused by an alleged defect in the master's machinery the complaint will be dismissed in the absence of evidence to show how long the defect has existed.

Appeal from trial term.

Action by William Oehme against Valentine Cook and another for personal injuries sustained by plaintiff from the alleged negligence of defendants while employed in their iron foundry. A crane in the foundry consists of a vertical beam, about 16 or 18 feet high, that reaches nearly to the ceiling, and revolves on a pivot. From the top of this beam, two horizontal pieces of timber, about 20 feet long, parallel, on the same level, extending in the same direction from the vertical beam, and reaching out the same distance from it, project. A carriage, the wheels of which rest on the two horizontal timbers, moves back and forth upon them. A traveling bar is run directly above the space between the horizontal timbers. The one end of the traveling bar is fastened to the carriage, and, as the carriage is moved back and forth, the traveling bar, to keep its horizontal position, moves on a cog-wheel between the horizontal timbers nearest the vertical beam. On the inner side of either of the horizontal timbers a bar of iron was screwed, on which the end of the traveling bar would drop, in case it was forced outward beyond a certain point. This bar, which the witness called the "preserver," plaintiff attempted to prove, was absent at the time of the accident. From a judgment entered on a nonsuit, plaintiff appeals.

Argued before LARREMORE, C. J., and VAN HOESEN, J.

August P. Wagener and Lexow & Leo, (Leopold Leo, of counsel,) for appellant. Edward M. Burghard and Lewis Sanders, for respondents.

VAN HOESEN, J. The evidence showed that the traveling bar fell from the crane and struck the plaintiff, but that it would not have fallen if a piece

When the pre

called the "preserver" had been in its place on the crane. server was taken away, no one of the witnesses could testify, but it was replaced after the accident happened to the plaintiff. The learned judge dismissed the complaint because it did not appear how long the preserver had heen off the machine, and said that it was indispensable that there should be some evidence that the defendants were negligent in failing to replace it in a reasonable time after its removal. In the absence of any evidence as to how long the preserver had been lacking, the judge said that the jury could not draw the conclusion that the defendants had been negligent, because, for aught that appeared, it might have been broken and have fallen off at the very moment of the accident. I think that the learned judge was correct in his ruling, and that the judgment should be affirmed. Bailey v. Railroad Co., 3 N. Y. Supp. 585. Judgment affirmed, with costs.

KNAPP v. BARCLAY.

(Common Pleas of New York City and County, General Term. December 2, 1889.) APPEAL-REVIEW-WEIGHT OF EVIDENCE.

Where the evidence is conflicting, judgment will not be disturbed on appeal. Appeal from district court.

Action to recover money paid to the agent of defendant to obtain a lease from the latter. Judgment for plaintiff, and defendant appeals. Argued before LARREMORE, C. J., and VAN HOESEN, J.

James H. Laird, for appellant. Matthew Daly, for respondent.

PER CURIAM. We can discover nothing in the evidence to warrant the observation of the justice of the district court that Stehle deceived Darer, and fraudulently induced him to pay the money in controversy to Barclay. If the justice believed Darer's own story, he had no reason to impute the slightest fraud to any one. Darer swore that he paid the money to Barclay's agent in reliance upon the promise of the latter that it should be returned in case Mr. Barclay did not give him a lease of the farm. Mr. Barclay did not give Darer a lease, and, consequently, if Darer's story be true, he is entitled to recover the money, not because he was defrauded, but because the contract provided that it should be returned to him, under the circumstances that now exist. Although the testimony of Darer is amply sufficient to support the judgment, it seems that it was not accepted as true by the justice, who appears to have discredited the statement that the money was to be returned in case a lease were not given to Darer, and to have assumed without proof that Darer paid the money because Stehle persuaded him that it was the best way to insure the getting of a lease, and that Stehle was guilty of fraud in using such persuasions. We have doubts as to whether the decision of the court below was a wise one, but we shall not interfere with it. It seems strange to us that no inquiry was made of Paine, the agent of Mr. Barclay, as to whether he agreed at the time the money was paid to return it to Darer in the event of Mr. Barclay's refusal to give him a lease. Paine was a witness, and the very turning point of the case was whether or not such an agreement was made, and yet Paine did not really contradict Darer's statement as to the agreement. We must therefore affirm the judgment.

RIGGS v. CHAPIN et al., (three cases.)

(City Court of New York, General Term. December 2, 1889.)

1. PLEADING-PLEADING AND PROOF-VARIANCE.

Where the complaint avers that defendant M. contracted to build a house for defendant C., and plaintiff subcontracted with M. to do the work, plaintiff cannot prove a contract between himself and C.

2. SAME-AMENDMENT-DISCRETION of Court.

It is in the discretion of the court to grant leave to amend a complaint on trial. 8. MECHANICS' LIENS-RIGHTS OF SUBCONTRACTORS.

Under Laws N. Y. 1885, c. 342, § 1, giving a lien to persons doing work on, or furnishing material for, a building, with the consent of the owner, but providing that the owner shall not be liable, by reason of the liens filed, to pay more than the amount agreed on in the contract, and remaining unpaid at the time of filing the lien, a subcontractor need not show the consent of the owner directly to himself; but, in the absence of an agreement by the owner making himself personally liable for the claim of the subcontractor, the latter has a claim against the property no further than the amount unpaid on the contract at the time of filing his lien. 4. JUDGMENT-CORRECTION-DISMISSAL.

Where an action is dismissed on technical grounds, a recital in the judgment that the dismissal was on the merits will be stricken out.

Appeal from special term.

Action by John Riggs against James M. Chapin, Frederick R. Meres, and others to foreclose a mechanic's lien filed by plaintiff against property owned by defendant Chapin. The complaint alleges that Chapin made a contract with defendant Meres whereby the latter was to build the stairs in said house, and furnish lumber and material therefor, to be paid for in installments, as the work progressed; and that Meres made a subcontract with plaintiff to do said work, and certain extra framing, for $200, to be paid in two installments. The complaint alleged that Chapin, the owner, "well knew" the facts stated; and that there was due from him to the contractor more than sufficient to satisfy plaintiff's lien. On the trial, plaintiff undertook to prove a contract between himself and Chapin, whereby the latter agreed to pay plaintiff for the work done. The trial judge ruled that the proof offered was not receivable under the pleadings, and that plaintiff was bound to prove the facts as alleged, to-wit, that Meres performed his contract with Chapin; that the latter owed Meres more than the amount of plaintiff's lien, and dismissed the complaint. From the judgment entered on this dismissal, plaintiff appeals. Argued before MCADAM, C. J., and HOLME, J.

W. P. Prentice, for appellant. A. D. Kenyon, for respondent Chapin. Tuttle, Goodell & Brooks, for respondent Meres.

MCADAM, C. J. It is a settled rule that the allegata and probata must agree. The latter must support the former. In other words, the plaintiff must prove his case as he has alleged it. Cumiskey v. Lewis, 15 N. Y. St. Rep. 364. The object of the pleadings is to arrive at a specific issue upon a given and material fact. If there be proofs to facts not put in contestation by the pleadings, or allegations of facts not established by proofs, in each case they must be rejected. The Sarah Ann, 2 Sum. 206. Every fact which a party must prove to establish his cause of action or defense must be stated in the pleading, (Gurnee v. Beach, 40 Hun, 108;) and facts which are not alleged cannot be proved, (McKyring v. Bull, 16 N. Y. 297.) The rule touching the statement of facts constituting the cause of action is the same in all cases, legal or equitable; and the rules by which the sufficiency of the pleadings are to be determined are prescribed by the Code. People v. Ryder, 12 N. Y. 438; Pom. Rem. § 527. Kelsey v. Western, 2 N. Y. 501, was an equity case, and the court (at page 506) held: "It is well settled that no proofs can be offered of facts not put in issue by the pleadings, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleadings and evidence, and therefore particular care must be taken to put in issue in the bill whatever is intended to be proved by the complainant in the cause; otherwise, he will not be permitted to give it in evidence, for the court pronounces the decree secundum allegata et probata. The reason of which is that the adverse party may be apprised against what suggestion he is to prepare his defense. The rule of pleading is practically the same whether the action be in its nature of legal or equitable cognizance, except