Wm. H. Scott, for respts. out a cause of action in favor of plaintiffs. Tho order overruling the demurrer must therefore be affirmed with costs. Opinion by Barrett, J.; Davis, P. J., concurring. on advances on vessel and cargo, free of general and particular average, and without reclamation," in view of the indeterminate nature of the expressions used in their connection and the general rule with respect to the construction and in- TRESPASS ON LAND IN ANterpretation of such contracts, OTHER STATE. should be construed as a distinct N. Y. SUPREME COURT. GENERAL insurance upon the advances on the vessel and cargo severally and not jointly. As a contract of indemnity to the assured, the policy is to be liberally construed, and where the language of the promissor may be understood in more senses than one it is to be interpeted in the sense in which he had reasons to suppose it was understood by the promissee, Duer on Ins., 161; 32 N. Y., 405; and in case of doubtful con struction, other things being equal, that construction should be adopted which is most favorable to the promissee. TERM. FIRST DEPT. Decided April 7, 1880. An action of trespass quare clausum fregit, committed in another State, beyond the jurisdiction of our courts, cannot be maintained in this State. Appeal from judgment entered upon order overruling demurrer to the complaint. Action to recover damages for trespass. The complaint, after althe plaintiff of a farm at Westwood, leging ownership and possession in in Bergen County, in the State of New Jersey, alleges that on or about the fourth of October, 1877, the defendant "wrongfully, unlawfully, and maliciously trespassed upon said farm, and took forcible possession thereof without even a color of right, and has continued in possession thereof until the present time," and demands judgment for the damages caused by these wrongful acts. The defendant demurred for insufficiency and want of jurisdiction. Held further, That while it is a general rule in insurance free of particular average that the underwriter is only liable for a total loss, *this is not necessarily a total loss in specie, but of value. There may either be an actual or constructive total loss. In the former case, the thing insured is physically destroyed, substantially so at least. In the latter the material form may exist, but the value to the owner is gone. Such demurrer was overruled beIn the present case the allegations low. of the complaint show sufficiently such a total loss under the rules laid down in 66 N. Y., 515, as make Vol. 9.-No. 24.* C. H. Williams, for applt. S. G. Courtney, for respt. Held, This is an action of tres pass quare clausum fregit, committed dollars was to be applied upon the in another state beyond the juris- interest accrued upon the mortgage, diction of our courts. It is well and the one thousand dollars was settled that such an action cannot to be applied upon the principal. be maintained in this state. 2 The attorney paid the seventy dolSeld., 542; 23 Wend., 234; S. C. 6 lars interest and converted the one Hill, 82. thousand dollars to his own use. Burd, the attorney, did not deny the receipt and wrongful conversion of the one thousand dollars to his own use, and the only answer made by him was, in substance, that he did The cases cited by the court below, which are supposed to hold the contrary view, are actions either to enforce specific performance of contract or for damages to lands situated in this state, arising from not receive the money as an attornuisances located across the bound-ney and counsellor of the court, but ary line of the state, or for fraudu- as attorney in fact. lent conspiracies affecting lands in this state. The judgment must, therefore, be reversed, and judgment ordered for the defendant on the demurrer, with costs. Opinion per curiam. DISBARMENT OF ATTORNEY. No attorneys' names given. Held, There can be no doubt, we think, that the complainant Heuger applied to the respondent solely because he was an attorney, for the purpose of having the payments made and endorsed in due and legal form upon the mortgage, and there seems no reason to doubt that the repondent understood that he was retained as an attorney for that purpose, and because of his supposed better knowledge of the proper In the matter of T. Wilbur Burd. mode of doing the business required Decided April 7, 1880. The conversion to his own use by an attorney of a sum of money delivered to the attorney. as such, by his client, to be applied upon a bond and mortgage outstanding against the client, and the concealment of such conversion, is such a fraud and deception as justifies and requires the disbarment of the attorney from practicing in the courts of this State. by his client. That the conduct of the attorney was a gross deceit and fraud practiced upon his client, and for the court to overlook such conduct would be a dereliction of duty on the part of the court which would end in the destruction of all confidence in both attorneys and courts. It is our duty, therefore, not only to find the respondent guilty of fraud and deceit alleged against him, but to hold that he is no longer worthy to be a member of the bar. The affidavits upon which the application for the disbarment of Burd as attorney was based, show that Burd was paid by one Heuger, his client, the sum of $1,070, for the purpose of having the same paid by him (Burd) upon the mortgage men- His name must be stricken from tioned in the affidavit. Seventy the roll of attorneys and counsel lors, and his license to practice in were not under the control or custhe several courts of this State tody of the attorney. The court must be revoked. then made an absolute order for the production of the books. This order was served upon the defendant's attorney only, and was not obeyed. The plaintiff, then, upon Proof of such service and disobedience, obtained an order to show cause why the answer of defendant should not be stricken out for failure to obey the order, under section 808, Code: By section 799 of the Code it is provided that where a party has appeared, all notices or other papers must be served upon his attorney. By section 802 the above mentioned section is made inapplicable to the service of papers to bring a party into contempt. Franklin Bien, for applt. Barrett & Patterson, for respt. Held, That it was the old rule that where the party proceeded by order to show cause, service need not be made upon the party. 4 The plaintiff brings this action to recover for services alleged to have been rendered to the defendant. The answer is a general denial. The defendant is a New York corporation. The plaintiff presented his petition under sections 803, 804 and 805 of the Code, for an inspection of defendant's books of account, alleging, among other things, that the services were rendered under Paige, 360; 1 Barb., 227; 9 Paige, the employment of a person pur-372; that the application in this porting to act as the agent of de- case fell within the principles estabfendant, and that the books will lished in Pitt v. Davison, 37 N. Y., show that such person was actually 235, where the Court of Appeals the agent of defendant. Upon this held that an order to enforce civil petition the court at Special Term remedies was properly served upon made an order that defendant allow the attorney. plaintiff, or his attorney, to inspect their books or show cause at a time and place specified in the order. The order was served upon the attorney for defendant, and not upon That it was one of the ordinary any other person representing de- proceedings in an action, and that fendant. At the time and place the order striking out the answer is specified the defendant appeared simply the enforcement of a civil and opposed the order for discovery remedy. That it was not necessary upon an affidavit that the books to serve the order upon defendant's The court may direct an inspection of books. If it is disobeyed, it may strike out the answer of defendant. officers, and that the judgment and appealed from held that the servorder be affirmed, with costs. Opinion by Barnard, P. J. ice of the annexed complaint destroyed the issue upon which the cause was noticed for trial and put upon the calendar; and that under the section of the Code allowing an amendment of course no force whatever could be given to the words, GENERAL" without prejudice to the proceedings already had." AMENDMENT OF PLEADINGS. N. Y. SUPREME COURT. TERM. THIRD DEPT. Welton B.Ostrander et al., respts., v. Harlow H. Conkey, applt. Decided April 8, 1880. If a party notices his cause for trial before the time allowed his adversary to amend has expired, he does so at the peril of having his notice go for nothing if his adversary amends in good faith, destroying the issue formed; but, subject to this risk, he has a right, when the cause is at issue, to notice it for trial before the time for amending expires. Leslie W. Russell, for applt. W. G. Tracy, for respt. Held, That the clause of the Code which gives the right to amend a pleading" without prejudice to proceedings already had" must be considered and construed with refer ence to the absolute right of a party once to amend. That if a party notices his cause for trial before the time allowed to his adversary to amend has expired, he does so at his peril; that is, at the peril of having his notice of trial go for nothing in case of an amendment of the pleading of his adversary, in good faith, destroying But, subject to this risk, a party has the right, when the cause is at issue, to notice it for trial before the time for amending expires. Appeal from an order made at Chambers, setting aside an order made at the circuit dismissing the complaint. The summons was served on the 11th of July, 1879; the complaint was served on the 1st of the issue formed. August, 1879, and the answer on the 6th of Sept. On the 20th of Sept. notice of trial was served by the defendant for a circuit commencing Oct. 6, 1879. On the 25th of Sept., 1879, an amended complaint was served, and on the 1st of Oct. the defendant's answer was served. On the 14th of Oct., the The Code contemplates a notice of cause being reached in its order trial after the issues have been upon the calendar at the circuit, settled. It provides that either the court, on proof of service of party may notice the cause for trial notice of trial, and a statement of the situation of the case, made an order dismissing the complaint, and judgment was subsequently entered. The justice who made the order If the issue shall remain when the time for trial arrives, then he may try the cause, and, if successful, perfect judgment. at any time after the joinder of issue, and at least 14 days before the circuit. The issue here referred to is the issue made for trial in the cause. In case of an amendment of the was perfected, and his executors pleadings, it means the issue made were substituted in his place. The business consisted in the running of a grist mill and dealing in flour and on the amended pleadings, for those are the issues to be tried. Order affirmed, with $10 costs, grain. The mill was owned by the &c. Opinion by Bockes, J.: Learned, P. J., and Boardman, J., concurring. defendant alone, and the plaintiff put his labor and skill in the business against the use of the mill. By the partnership agreement the PARTNERSHIP ACCOUNTING. partses were to bear equally the ex EVIDENCE. N. Y. SUPREME COURT. TERM. THIRD DEPT. GENERAL William R. Chandler, admistrator, &c., respt., v. E. Billings Allen, executor, &c., applt. Decided April 8, 1880. penses of keeping the mill and flume and dam in repair, and were to divide the profits of the business in equal proportions. The subject of expense in keeping the mill, flume and dam in repair during the partnership term was made, by the pleadings and evidence, an importThe original plaintiff and defendant were ant element in adjusting the acpartners in the milling business. Defendant counts between the partners. The owned the mill and plaintiff put his labor and referee allowed the plaintiff to testiskill against the use of the mill. By the articles of copartnership each was to share fy, as a witness, that he caused the equally the expenses of keeping the mill, repairs on the dam and flume to be flume and dam in repair. In an action to made out of his own means. Being settle the partnership and for an accounting asked, "What would these repairs the plaintiff was allowed to testify that he amount to, each year, upon an avercaused the repairs to the mill, &c., to be made out of his own means, and also to state age?" he answered: "I should what the repairs would amount to per year think $50 per year. That included on the average, including the labor done and the labor I have done and employemployed by him, and also what the worked." Again, "What was the work done in repairs in thirteen years was worth. Held, error; that these expenses should you have done upon the mill and have been itemized and the items proved dam in repairing them, in the last with reasonable certainty before an allow- thirteen years, worth?" The wit ance could be made for them. Appeal from a judgment entered upon the report of a referee. nesss was allowed to answer, against objection, putting his estimate at $300. The referee found that the The action was brought to settle partners both complied with the a partnership, and for an account-provision in the contract respecting ing in respect to the business of the repairs, and that neither had any copartnership, which extended from 1862 to 1875. The partnership was terminated by the death of the original plaintiff, after the trial and before the decision of the referee. The defendant died after the appeal claim against the other therefor, but that in the adjustment of the whole accounts there was due to the plaintiff's intestate, from the defendant's testator, for his half of the profits of the business, the sum of $525.94; |