Noble a. Cromwell.

premises at the sale under the judgment. The case of Jackson v. Brown (3 Johns., 459), cited by the petitioner, is not applicable, because the conveyance in that case was made before the proceedings in partition were commenced, and the grantee was not named in the proceeding.

By the will under which the parties claimed title to the premises, the testator, after dividing his property into nine parts, devised one share thereof to William H. Noble, in trust for his wife during her natural life, and to her heirs forever, subject to a life estate to the husband after the death of the wife.

The title to the premises under this devise vested directly in the wife, and not in the trustee, during her life (1 Rev. Stats., 728, § 49); and the question is raised by the petitioner, whether, after her death, the estate did not pass to the children of Mrs. Noble. Under the provisions of the Revised Statutes (1 Rev. Stats., 748), Mrs. Noble's children, if she left any surviving, would be entitled to the fee, subject to the estate of the husband therein during his life, if he survived his wife.

It is no answer to the objection taken by the petitioner to the title of the premises sold, in this respect, to say that there are no children shown to be in existence. It may or may not be the case at the time of her death. Until that event takes place, it is impossible to say who will be her heirs, or whether her children, if she has any, will survive her.

The difficulty, however, which arises from this view of the case may be remedied by an amendment of the judgment directing the share of the property, in which Mrs. Noble has an interest, to be brought into court and invested; the income to be paid to her during her life; to her husband, if he survive her, after her death; and to belong to the heirs of Mrs. Noble thereafter. The plaintiff should apply for an amendment of the judgment in this respect; and if so amended, the sale can be completed. The general term of the Supreme Court in this district, in Mead v. Mitchell (September term, 1857), have decided* that with such a disposition of the fund the partition is good, and a good title can be given to the purchaser. (See same case at special term, 5 Abbotts' Pr. R., 92.)

The motion will be granted, unless the plaintiff within thirty

Affirming the judgment of the special term, Mead v. Mitchell, 5 Ante, 92.

Smith a. Woodruff.

days applies for and obtains an order amending the judgment in this respect. If so amended, the motion is denied.

The petitioner to be paid the costs of this application out of the funds.

SMITH a. WOODRUFF.

New York Common Pleas; Special Term, February, 1858. RECEIVER.-UNAUTHORIZED SUIT BY.-LIABILITY FOR COSTS.

A receiver should apply to the court for leave to sue as such.

If he neglects to do so, and judgment is recovered against him, he ought not, as a general rule, to be exempted from personal liability for costs.

Motion by plaintiff to be relieved from personal liability for

costs.

This action was brought by William B. Smith, a receiver appointed in certain supplementary proceedings, against Samuel B. Woodruff. The plaintiff brought the action as such receiver, but brought it without leave of the court. Judgment having been entered against him with costs, he now moved to vacate as much of it as charged him with any personal liability for the payment of them, and also to set aside the execution issued to collect them.

S. T. Freeman, for the motion.

D. T. Walden, opposed.

HILTON, J.-Although a receiver appointed upon a proceeding supplementary to execution has general power and authority to sue for debts or demands belonging to the judgment debtor, yet when this power is exercised without the express authority. or sanction of the court, as a general rule, he ought not to be shielded from the payment of the costs which he may incur on his own behalf, or may put the opposing party to, in prosecuting an illegal claim.

In all cases where he desires to prosecute or defend an action

VOL VI-5

Schroeder a. Kohlenback.

in his official character, without personal liability in the event of failure, he should first apply to the court for leave.

Any other rule would enable him to bring needless and vexatious suits, and on failing to recover, not only charge the estate he represents with useless expenses, but impose the troubles and burdens of litigation upon others, while he would entirely escape responsibility.

This action having been brought without leave of the court, the plaintiff prosecuted it at his peril, and should be left to the consequences of his own acts. (Phelps v. Cole, 3 Code R., 157; Supreme Court Rules, 77.) Motion denied, with costs.

SCHROEDER a. KOHLENBACK.

New York Common Pleas; General Term, January, 1858.

TRIAL.-DEFAULT OF PLAINTIFF.-DISMISSAL OF COMPLAINT.

If the plaintiff in an action of claim and delivery, in which issue has been joined, neglects to bring the cause on for trial, the proper course for the defendant is to notice the cause himself and bring it on.

An order that the complaint be dismissed, unless the plaintiff bring the cause to trial within a specified time, is improper in such a case.

Appeal from an order at special term directing that the complaint be dismissed, unless the plaintiff bring the cause on for trial at the next trial term.

This was an action of claim and delivery. Issue was joined, and the cause was noticed for trial by the plaintiff's attorneys for June term, 1857, and the cause placed upon the calendar. It was regularly called in its order, and was passed and marked down, for the reason that the plaintiff was not ready to try it. The defendant appeared at the time, and was in readiness to try the cause.

On an affidavit of these facts, defendant' procured an order that the complaint be dismissed, with costs, unless the plaintiff

Schroeder a. Kohlenback.

bring the cause to trial at the next trial term, and pay the costs of the motion.

From this order plaintiff now appealed.

D. T. Walden, for appellant.-I. The motion of defendant, as stated in his notice, is for dismissal of the complaint, "for the reason that the plaintiff has not brought the cause to trial according to the rules and practice of the court." It is not, in terms, for "unreasonable neglect to proceed in the action." It is in the language of the rule 21, as it existed in 1852, &c. The rule of 1852, &c. (21), established the practice under the Code, which, prior to that time, was known as a motion for judgment, as in case of nonsuit; and all the cases founded the practice on the rule. (McCarthy v. Hancock, 1 C. R., N. S., 21; Bishop v. Morgan, Ib., 340; Holmes v. Slocum, 6 How. Pr. R., 218; Thompson v. Kreder, 8 Ib., 248; Roy v. Thompson, Ib., 253; Hawley v. Seymour, Ib., 96; Fuller v. Sweet, 9 Ib., 74.)

II. Section 274 of the Code alone would not authorize the practice. That section applies only to a case where the defendant has no other means of forcing the plaintiff to proceed, and was to enable him to force the plaintiff to proceed in the action. By section 258, the defendant could bring the cause to trial. If he fail to notice it, and take advantage of this rule, he is in default he is negligent, and should not be entitled to favor. He could not, under the former practice, have judgment, as in case of nonsuit, for that reason; and could not have had it since the Code, were it not for rule 21, as it existed in 1852.

III. Rule 21 being the foundation of the practice,-on its repeal in 1854 the practice was at an end; and the disability in consequence of defendant's failure, to notice and move the cause at the trial must be a complete answer to his attempt to charge plaintiff with neglect: both are negligent, if either; and query, is not the rule applicable, that if both are negligent, neither shall have a remedy against the other? There is not a reported case, since the repeal of rule 21, in which the motion has been. granted.

IV. If this motion is under the Code, the defendant does not make out a case of unreasonable neglect. He does not state it in his affidavit; and the mere fact that plaintiff did not bring the case to trial, cannot be called "unreasonable neglect."

Ehlen a. The Rutgers Fire Insurance Company.

BY THE COURT.-DALY, J.-The Code having authorized either party to notice the cause for trial, there was no occasion for the 23d rule of the Supreme Court Rules of 1849, which authorized the defendant to move for a dismissal of the complaint where the plaintiff failed to bring the cause to trial, and it was accordingly left out in the revision of the rules in 1854. The defendant may now notice the cause for trial, and either bring it to trial, or have the complaint dismissed; and if he fails to do so, he is as much in neglect as the plaintiff. In the former action of replevin, the defendant was, as he is now, an actor; and in that action it was well settled that the defendant could not move for judgment as in case of nonsuit, for the neglect of the plaintiff to bring the cause to trial, pursuant to his notice. (Poltz v. Curtis, 9 Wend., 497.) Section 274 authorized a motion to dismiss the complaint; but that applies only to cases where there is no other mode to compel the plaintiff to proceed. I think, therefore, that the motion at the special term was improperly granted, and that the order should be reversed. Order appealed from reversed.

EHLEN a. THE RUTGERS FIRE INSURANCE
COMPANY.

New York Superior Court; General Term, January, 1858.

SPECIAL REPORT OF REFEREE.-MODE OF REVIEWING.

Where, in an action on an insurance policy a reference was had, before trial, to ascertain the amount of loss, and the referee's report was read in evidence on the trial, and verdict was for the plaintiff,-Held, that the report could not be reviewed at general term, on the defendant's appeal from the judgment; but that his remedy should have been by motion or objection before it was read in evidence.

This was an action on a policy of insurance. The facts which raised the question of practice presented, appear in the opinion.

C. A. Nichols, for the appellants.

Charles A. May, for the respondent.