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each is in full possession, each has full ownership as against all the world, with the exception of the equal right of the others, and the transfer, which becomes fully determined at the death of one of two joint owners, relates back to the creation of the estate. It was then that the rights vested, and the death only determines which shall be the gainer by the transaction. While there might be a joint tenancy created which would be so obviously fraudulent in its inception as to take it out of the general rule, we are persuaded that where an account is created in the manner permitted by the Banking Law, with all of its incidents known and recognized in the law, it cannot be presumed that there was any other intention than that which the law ascribes to such an act, and that property thus disposed of is not "made in contemplation of death," as that language is understood in the jurisprudence of this state, nor "intended to take effect in possession or enjoyment at or after such death." Section 220, Tax Law.

If the Legislature deems such dispositions of property to be properly taxable, that is a question which may be dealt with in the proper department; but this court has no power to enlarge upon the scheme of tax laws. See Matter of Starbuck, 137 App. Div. 866, 122 N. Y. Supp. 584; Matter of Green, 144 App. Div. 232-234, 129 N. Y. Supp. 54, and authorities cited. The order appealed from should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements. All concur, except SMITH, P. J., who dissents.

(165 App. Div. 683)

In re STEELE. (No. 300/5.) (Supreme Court, Appellate Division, Third Department. January 6, 1915.) 1. ATTORNEY AND CLIENT ($ 182*)—ATTORNEY'S LIEN-JUDGMENT FOR COSTS.

The fact that costs taxed in a case belong to the client, and not to the attorney, does not affect the attorney's lien on the judgment for costs.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 88 315,

399-406; Dec. Dig. & 182.*] 2. JUDGMENT (8 883*)-SET-OFF OF JUDGMENTS-ATTORNEY'S LIEN.

Where R. recovered a judgment for trespass against S., and, body execution having been issued, S. was incarcerated, after which he applied for discharge from imprisonment, and was discharged, and the order affirmed by the Appellate Division, with costs against R., he was entitled to have the judgment for costs set off against his judgment against S., in the absence of any claim or showing on the part of the latter's attorney that he was entitled to enforce an attorney's lien on the judgment for costs.

[Ed. Note.--For other cases, see Judgment, Cent. Dig. 88 1669-1688; Dec, Dig. $ 883.*] Appeal from Saratoga County Court. Application of Harvey Steele, an imprisoned debtor, to be disa charged. From an order of the Saratoga County Court, offsetting judgments held by the respective parties against each other, Steele appeals. Affirmed.

See, also, 158 App. Div. 894, 142 N. Y. Supp. 1146. *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexp

151 N.Y.S.-6

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Tibbitts Walker, of Corinth, for appellant.

Slade, Harrington & Goldsmith, of Saratoga Springs (Irving I. Goldsmith, of Saratoga Springs, of counsel), for respondent.

HOWARD, J. A judgment was rendered in the Supreme Court in an action for trespass for the sum of $171.62 in favor of Marion Ross and Nancy Shea and against Harvey Steele. An execution was issued to the sheriff of Saratoga county upon this judgment, but it was returned unsatisfied, and subsequently an execution against the person of Harvey Steele was issued, and he was taken into custody and confined in the Saratoga county jail. Subsequently Steele made an application under the Debtor and Creditor Law to be discharged from imprisonment, and he was discharged. An appeal to the Appellate Division from the order discharging him was taken by Marion Ross and Nancy Shea, but the order of discharge was affirmed, with costs, amounting to $63.22, in favor of Steele. An application was made by Ross and Shea to the Saratoga County Court to have the judgment for costs, obtained by Steele, offset and credited upon the judgment previously obtained by Ross and Shea against Steele. This motion was granted, and from that order an appeal is taken to this court.

[1] Under section 475 of the Judiciary Law (Consol. Laws, c. 30), and under numerous decisions of the courts construing section 66 of the Code of Civil Procedure (the statute on this subject which preceded section 475 of the Judiciary Law), the attorney for Steele, on the appeal from the order discharging him from custody, undoubtedly has a lien on this judgment of $63.22 for costs. The County Judge in his memorandum based his determination upon the proposition that the costs belong to the client, and not to the attorney. This is the law, but it in no manner affects the attorney's lien upon the judgment for costs. Matter of Regan, 167 N. Y. 338, 60 N. E. 658; Agricultural Insurance Co. v. Smith, 112 App. Div. 840, 98 N. Y. Supp. 347; Barry v. Third Ave. R. R. Co., 87 App. Div. 543, 84 N. Y. Supp. 830.

[2] These convincing authorities and the plain language of the statute would require us to reverse the order of the County Judge, were the record sufficient to form a basis for such action. It seems to us, however, to be wholly insufficient. Walker, the attorney for the appellant, has failed to make an affidavit himself, or present for the consideration of the court the affidavit of his client. And he has failed to put anything whatever in the record showing that he acted as attorney for Steele in procuring his discharge from custody, or anything showing that he has not been paid. He has also failed to make any claim, so far as the record shows, for his lien. The record does not indicate that any notice of lien or claim of any kind on the part of the attorney has been presented against Steele's judgment, and we are also not informed whether it was Walker, or some other attorney, who represented Steele on his motion to be discharged. If the neces

sary information appeared in the opposing affidavits, it would, perhaps, be sufficient; but the record is absolutely barren of all the basic facts necessary for the application of the provisions of section 475 of the Judiciary Law.

Therefore these simple facts alone are presented to us: Ross and Shea have a judgment for $171.62 against Steele, and Steele has a judgment for $63.22 against Ross and Shea. Unless we are at liberty to assume the facts which the record has failed to supply, we cannot order the enforcement of the attorney's lien. Such an assumption we cannot make; neither could the court below. This being so, it was the duty of the County Judge to offset the Ross and Shea judgment against Steele's judgment. Therefore his order should be affirmed. Order affirmed, with $10 costs and disbursements. All concur.

(165 App. Div. 52)

CUNNINGHAM v. SUPREME COUNCIL OF ROYAL ARCANUM.

(Supreme Court, Appellate Division, Second Department. December 18, 1914.) 1. INSURANCE (8 694*)-FRATERNAL ASSOCIATIONS-MEMBERS-EXPULSIONCONVICTION OF CRIME.

A beneficial association had an inherent right to expel a member on his being convicted of perjury.

[Ed. Note.- For other cases, see Insurance, Cent. Dig. 88 1834, 1835; Dec. Dig. $ 694.*] 2. INSURANCE (8 694*)_FRATERNAL ASSOCIATIONS-MEMBERS-EXPULSION

BY-LAWS.

Where a member of a beneficial association was convicted of perjury, he was subject to expulsion under a by-law declaring that a member who shall be guilty of any immoral practice or improper conduct, violative of his duties and unbecoming his profession as a member of the order, on conviction thereof shall be suspended or expelled.

[Ed. Note.--For other cases, see Insurance, Cent. Dig. 88 1834, 1835 ;

Dec. Dig. 8 694.*] 3. INSURANCE (8 694*) --FRATERNAL ASSOCIATIONS-EXPULSION-VESTED RIGHT.

Where a beneficial association was carried on by its members as a charitable, fraternal, and social enterprise, without any element of financial profit, to unite fraternity men of good moral character, socially acceptable for their social, moral, and intellectual education, and to give all moral, social, and material aid in its power to members, the expulsion of a member because of conviction of perjury was not an impairment of any vested right which he had to continue his membership.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. $8 1834, 1835; Dec. Dig. § 694.*] 4. INSURANCE (

8719*)—FRATERNAL AssociATIONS—MEMBERS—EXPULSIONBY-LAWS.

Where the by-laws of a beneficial association when decedent joined provided that a member might be expelled after trial on charges at a stated meeting, the society, as against decedent, was authorized, during the continuance of his membership, to so change the procedure as to make proof of judgment of conviction and sentence for crime sufficient evidence to justify conviction. [Ed. Note. For other cases, see Insurance, Cent. Dig. $ 1855; Dec. Dig.

$ 719.*]

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Ref'r Indexes

Submission of controversy on an agreed statement of facts, under Code Civ. Proc. $ 1279, between Eliza Cunningham and the Supreme Council of the Royal Arcanum. · Judgment for defendant.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

Frank D. Wynn, of New York City, for plaintiff.
Howard C. Wiggins, of Rome, for defendant.

JENKS, P. J. This submitted controversy presents the single question whether the expulsion of Cunningham by the defendant, a fraternal benefit society, was lawful. When Cunningliam joined the defendant, the procedure for expulsion prescribed investigation by an inquiry committee, preference of charges, if justified, and a trial before a stated meeting of the council. While Cunningham was a member of the defendant, the procedure was changed so that a trial was dispensed with when the offending member had been convicted of a felony or a misdemeanor, in that a certified copy of a judgment of conviction and final sentence thereon was deemed sufficient evidence for expulsion. Thereafter Cunningham was indicted for making false affidavits, whereby he secured a pension from the United States government, pleaded guilty, and served a sentence. Complaint was thereupon made against Cunningham, which was referred to the inquiry committee. That committee investigated the complaint, notified Cunningham, gave him opportunity to present rebutting evidence, and upon his failure to do so reported charges to the council, which were forwarded to the Supreme Regent, together with a certified copy of the said judgment and sentence of conviction. The Supreme Regent, pursuant to authority vested in him, expelled Cunningham,

[1] The defendant contends that the laws of the society conferred no right of suminary expulsion, and that there was an impairment of Cunningham's valid rights by the after-enacted law as to the necessary proof of conviction. I think that there was an inherent right of expulsion for the crime of perjury. King v. Mayor of Liverpool, 2 Burr. 732; People ex rel. Bartlett v. Medical Society, 32 N. Y. 187–194; Commonwealth v. St. Patrick Benevolent Society, 2 Bin. (Pa.) 441, 448, 4 Am. Dec. 453.

[2] Moreover, I think that the commission of such a crime was within the language of section 2 of the by-laws as it existed when Cunningham joined the order, and which provides as follows:

“A member who shall be guilty of any immoral practice or improper conduct, violative of his duties, and unbecoming his profession as a member of this order, shall upon conviction thereof be suspended or expelled.”

[3] It appears that the defendant is "carried on by its members as a charitable, fraternal, and social enterprise, without any element of financial profit, to unite fraternity men of good moral character, who are socially acceptable, for their social, moral, and intellectual education, to give all moral, social, and material aid in its power to its members,” etc. I think that there was no impairment of vested right. Howard v. Moot, 64 N. Y. 262; Lazarus v. Met. R. R. Co., 145 N. Y. 581, 40 N. E. 240; Southwick v. Southwick, 49 N. Y. 510.

[4] All that the after-enacted by-law changed was to make proof of judgment of conviction and sentence for a crime "sufficient” evidence to justify expulsion. There was a change of procedure, and, to my mind, one entirely proper and reasonable. There was no provision, even, that the record of conviction should be conclusive, but "sufficient,” evidence. Indeed, Cunningham was afforded opportunity by the inquiry committee to present rebutting evidence. The conviction of Cunningham was an adjudication between the individual and the United States that he was guilty of this crime. Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. I see no good reason why the defendant, in the face of what was conclusive proof of the commission of a crime, should ordain that there must be a trial by it of that offense.

There must be judgment for the defendant in accord with the terms of the stipulation.

BURR, THOMAS, and PUTNAM, JJ., concur. CARR, J., not voting

(165 App. Div. 202)

DE KALB HOLDING CO. V. MADISON THEATER CO.

(Supreme Court, Appellate Dvi

on, Second Department. December 24, 1914.)

1. PLEADING ($ 129*)-FAILURE TO DENY-ADMISSION.

A failure to deny a part of plaintiff's pleading in an equitable action admitted its truth.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. $S 270-275; Dec.

Dig. & 129.*] 2. QUIETING TITLE (8 7*)—CLOUD ON TITLE-COVENANT AS TO USE OF PROPERTY.

A recorded lease of theater property covenanted that the theater should not charge more than $1 for admission, to prevent its competition within the field then occupied by the S. Theater and for the benefit of stockholders in the lessor theater who were also stockholders in the S. Theater, which covenant was to become inoperative if the S. Theater offered weekly vaudeville performances, or if such stockholders disposed of their stock to the lessor. The S. Theater thereafter offered vaudeville performances. Held, that the lessee had an action to cancel the covenant as a cloud on its title.

[Ed. Note.-For other cases, see Quieting Title, Cent. Dig. $8 14-33;

Dec. Dig. $ 7.*] 3. QUIETING TITLE ($ 2*)--SCOPE OF REMEDY-REAL ESTATE.

The equitable remedy to remove a cloud on title is not limited to real estate.

(Ed. Note.—For other cases, see Quieting Title, Dec. Dig. $ 2.*] 4. TRIAL ($ 388*)-FORM OF JUDGMENT-FINDINGS.

In an action to cancel a covenant in a lease of theater property as a cloud upon the lessee's title, the form of the decision should be an order for judgment without findings of fact.

[Ed. Note.--For other cases, see Trial, Cent. Dig. SS 908-911, 915; Dec.

Dig. § 388.*) *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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