Mallory agt. Clark.

the court, and, therefore, cannot be set aside, except by an appeal from that order, and its reversal. It must be remembered that when that order was made there was no action pending. It was a mere order, made in a proceeding for the appointment of a trustee, and the direction to the trustee afterward to confess a judgment, cannot make that judgment, thereafter confessed, valid, if, without such an order, it would have been a nullity. Whatever amount was due to the trustee should have been paid to him, and for that amount he had a lien on the trust estate in his hands, which he had a right to insist upon the payment of before parting with the estate. That lien could have been preserved, by directing the new trustee, in the order appointing him, to pay such moneys due to the former trustee out of the first receipts from the trust estate. I do not deem it necessary, or proper, to set aside this judgment on this motion until such a provision is made by an amendment of the order referred to. The judgment confessed by the trustee can be of no use in collecting the claims of the former trustee. But before the same is set aside, the order appointing the new trustee should be amended so as to provide for the payment of whatever balance is due to the plaintiff.

I find, on examining those proceedings, it is not stated that the infants were represented, or in any wise had a part in settling the amount due to the trustee. Mr. Chatfield, as guardian of the infants, had notice of the proceedings for the change of trustee; but the settlement of the accounts of the plaintiff was not made before the referee named, but appears to have been made by the trustee and some of the parties in interest, who were of age.

If this be so, the account should be adjusted before the referee, and after the balance is ascertained, the former order should be amended so as to direct the trustee therein named to pay to the plaintiff the balance due him, with the

Lancaster agt. Boorman.

interest, as soon as the said trustee shall receive from the trust estate sufficient funds therefor.

This amendment appears to me to be necessary for the plaintiff's protection, before the judgment is set aside; and the motion is only granted upon the condition that an application shall forthwith be made for the adjustment of the plaintiff's accounts, and for the payment thereof by the new trustee in the manner indicated.

Unless proceedings for such purposes are taken within thirty days the motion is denied.

Proceedings on the execution in the meantime stayed.

SUPREME COURT.

WILLIAM LANCASTER agt. JAMES A. BOORMAN and others.

An appeal lies directly from an order of a county judge vacating an order of arrest granted by him, to the general term of this court.

Kings County General Term, March, 1861.

THE defendant Boorman was, by an order of the county judge of Kings county, held to bail in the sum of $20,000 on the 22d day of January, 1861. He was arrested, and perfected his bail on the same day. On the following day the county judge of Kings county, on the application of the defendant Boorman, without any notice to the plaintiff, made an order vacating the order of arrest, setting aside the bail, and ordering the sheriff of the county of New York, to whom the order of arrest was directed, to surrender and cancel the bond given on the arrest; and, further, ordered the plaintiff to pay $10 costs of the motion to the defendant within five days.

From this order the plaintiff appealed to the general term.

Lancaster agt. Boorman.

I. T. WILLIAMS, for the plaintiff,

insisted that the appeal would lie directly from the order

of the county judge, vacating the order of arrest to the general term, and in support thereof made the following points:

First. An appeal will lie from an order of a county judge, in an action pending in this court, to the general term thereof. 1. The language of section 349 of the Code, will admit of no other interpretation whatever. The language is,

"An appeal may in like manner, and within the same time, be taken from an order made at a special term, or by a single judge of the same court, or a county or special county judge, in any stage of the action."

It will be observed that the Code is here speaking of "appeals in the supreme court from a single judge to the general term." (Heading of chapter 4, title 11, Code.)

This must refer to an ex parte order, for a county judge has no power to grant anything but an ex parte order. There is no provision in the Code for noticing a motion, in an action pending in the supreme court, before a county judge. The county judge granted this order by virtue of section 180 of the Code. (See Conklin agt. Dutcher, 5 How. Pr. R., 386.)

The following section, 350, would seem inferentially to limit the meaning of section 349. But it must be borne in mind that section 349 was altered in 1851, while section 350 remained unchanged. In the Code 1849, while section 350 read as it now reads; section 349 read as follows: "An appeal may in like manner, and within the same time be taken from an order made by a single judge of the same court, and may thereupon be reviewed," &c. Hence the propriety of section 350. But as the amendment of section 349, was subsequent to the enactment of section 350, it con

Lancaster agt. Boorman.

forms section 350 to it, and should not be conformed to section 350.

It is very clear, therefore, that the order in the present case, need not be entered before it is appealed from. Section 349, as amended, clearly does not contemplate such entry. It would be absurd to enter an exparte order of a county judge, nor yet would such a thing be practicable. Upon whose fiat would the clerk enter it? not upon that of the county judge, for no such authority is given to the county judge over the records of this court; not on the fiat of a judge of this court, for there is no provision for his interfering with the order of a county judge, and he might well decline to have the records of his court disfigured by so unseemly an entry as sometimes have or may emanate from the not too experienced hand of a county functionary.

Beside the letter of section 350, does not require it; that section refers only to orders made "upon motion." (Savage agt. Relyea, 3 How., 276.)

The cases that hold that an appeal will not lie from a judgment by default do not apply to the case of an order entered exparte. In the former case the judgment is by tacit consent, &c., in the other no such consent can be inferred. In the former case, the judge or court passes upon nothing, exercises nothing but a ministerial function. In the latter the judge reviews and passes upon the whole matter, in the present case, in review of his former decision, and if one may judge from the result to which he came, he must be presumed to have been most profoundly exercised.

J. L. SUTHERLAND, opposed.

The COURT held that the appeal would lie, and was well taken.

New York Ice Co. agt. Northwestern Ins. Co.

SUPREME COURT.

THE NEW YORK ICE COMPANY agt. THE NORTHWESTERN INSURANCE COMPANY.

An action on a policy of insurance to recover for a loss, and for equitable relief to reform the policy, if it should be found necessary for the plaintiffs' recovery, should be tried at the circuit before a jury.

But where such an action was brought on for trial as an equity case before a judge at special term, and the only question submitted was, as to the right of the plaintiffs to have the policy reformed, as prayed for in the complaint, which was denied, Held, that the plaintiffs not being entitled to the equity relief demanded, the court had no jurisdiction to retain the cause for the trial of the legal question of the loss on the policy.

New York Special Term, January, 1860.

TRIAL before the court, of an equity case.

INGRAHAM, Justice. The plaintiffs brought their action against the defendants on a policy of insurance against loss by fire. In the complaint they averred their claim on the policy for the loss, and they also averred facts from which they claimed that an error had occurred in the making out of the policy of insurance, and they demanded judgment against the defendant for the amount of the loss, and in case it should be necessary to the recovery, that the policy should be reformed and corrected, and for a further judg ment, as might be necessary.

It is apparent that both legal and equitable relief is prayed for in this complaint, although the main cause of action is to recover for the loss, and the equitable relief is merely sought for, if it shall be found necessary for the plaintiffs' recovery. That equitable relief was to reform the policy by correcting the alleged mistake.

It appears to me, that this cause should have gone to the circuit for trial. There the plaintiffs could have tried their action to recover for the loss before a jury, and as both the