SECOND DEPARTMENT, SEPTEMBER TERM, 1880. HENRY M. PECK, TRUSTEE, &c., PLAINTIFF AND RESPONDENT, v. THE NEW JERSEY & NEW YORK RAILWAY COMPANY, DEFENDANT. ISAAC C. DEMAREST, TRUSTEE, &C., PLAINTIFF AND RESPONDENT, v. THE NEW JERSEY & NEW YORK RAILWAY COMPANY, DEFENDANT. IN THE MATTER OF THE PETITION OF JEFFERSON M. LEVY, APPELLANT. Foreclosure of railroad mortgage-when a sale, had under a decree in, will not be set aside. APPEAL from an order made at Special Term, denying a motion made by Jefferson M. Levy, to set aside a judgment of foreclosure and a sale had thereunder. The plaintiffs in these actions are trustees for the holders of certain mortgage bonds issued by the defendant, and a company to whose rights and obligations it has succeeded. These actions were brought to foreclose the mortgages made to secure the bonds, and proceeded to a sale. Mr. Levy, a holder of several of these bonds, moved at Special Term to set aside the sale, and presented three grounds to the consideration of the court: 1st. Error of law by the referee to compute, whereby an excessive amount was reported due. 2d. Inadequacy of price. 3d. Surprise or mistake, preventing his presence at the sale. The court, at General Term, said: "A number of the bonds were pledged as collateral to debts of the company, by it, before their regular issue. These were included in the referee's computation. The appellant contends that these never had a legal inception. The respondent's answer is, that the company having failed to pay, the pledgees have sold, and the liability of the company become fixed. That this is true of some is shown by the appellant's petition, showing title to a part of his bonds thus gained. Such an eventual disposition of all bonds pledged was natural, and properly provided for. SECOND DEPARTMENT, SEPTEMBER TERM, 1880. "The appellant had an order staying the sale. This was vacated on the day of the sale, and he pleads that, relying on this order, he made no preparations to attend the sale, and, learning the stay had been vacated too late, he was not present. The order vacating was an adjudication that the stay should not have been granted in the first instance. This court will not interfere to throw the loss on the party improperly restrained, and give the appellant advantage of his wrong. (La Farge v. Van Wagenen, 14 How. Pr., 54.) "We do not think inadequacy of consideration established, but, if it were, the disposition we have made of the other points would leave it standing alone, and would require such inadequacy as 'would shock the conscience, and amount in itself to conclusive and decisive evidence of fraud.' (Story Eq. Juris., § 246.)" Clarkson N. Potter, for the appellant. C. B. Alexander and E. A. Brewster, for the respondent. Opinion by DYKMAN, J.; GILBERT, J., concurred; Barnard, P. J., not sitting. Order affirmed, with costs and disbursements. LEWIS E. CARR, RESPONDENT, v. ROBERT H. BERDELL AND CHARLES P. BERDELL, APPELLANTS. Action by an attorney for professional services—when it involves the examination of a long account—when it may be referred to an attorney to hear and determine. APPEAL from an order of reference made at the Orange Circuit during the progress of the trial of the action. The action was brought to recover for professional services rendered, and disbursements made, by the plaintiff for the defendants. The answer, although admitting the rendition of services by the plaintiff for the defendants, did not admit that the services sued for had been rendered. The answer also put in issue the value of the ser SECOND DEPARTMENT, SEPTEMBER TERM, 1880. vices, and set up payment of all the services rendered were worth. The trial was commenced at the Orange Circuit in January, 1880, and after some testimony had been taken, the trial justice of his own motion referred the case, on the ground that it was apparent to him that the trial would involve the examination of a long account. The court, at General Term, said: "There may have been occasions calling for the remarks in some of the cases cited by the appellant, deprecating references to attorneys of actions by attorneys for professional services. But no occasion for such remarks exists in this case, it being conceded by both parties, that the referee selected is unexceptionable. Nor can we assent to a sweeping condemnation of attorneys as referees in any class of cases. If, in a particular case the power of selecting a referee should be abused, the court has the power of removing him, and it must be presumed, would unhesitatingly exercise the power. It seems to us to be quite evident that the trial of this action will involve the examination of a long account, namely, an account for the services and disbursements of the plaintiff as an attorney and counselor during a period of more than two years, on which it is claimed numerous payments have been made. Nor will the trial require the decision of any difficult question of law. It is said that the plaintiff may recover as upon an account stated. But the complaint contains no averment warranting such a recovery. "The stipulation to admit the rendering and value of the plaintiff's services, being conditional upon a favorable decision of this appeal, cannot be allowed." W. J. Groo, for the appellants. Lewis E. Carr, respondent, in person. Opinion by GILBERT, J., DYKMAN, J., concurred; BARNARD, P. J., not sitting. Order referring action affirmed, with costs and disbursements. SECOND DEPARTMENT, SEPTEMBER TERM, 1880. MARY A. DURKIN, AS ADMINISTRATRIX, &c., APPELLANT, v. THOMAS R. SHARP, AS RECEIVER OF THE LONG ISLAND RAILROAD COMPANY, RESPONDENT. Reference-when it cannot be ordered without the consent of the parties—the right to order one is not affected by the fact that one of the parties is a receiver. APPEAL by the plaintiff from an order made at Special Terin, referring the action to Hon. Josiah SUTHERLAND, as a referee, to hear and determine. The action was commenced by the leave of this court against the defendant as a receiver, to recover damages for the death of the plaintiff's intestate, caused by the derailment of the train of which he was engineer. The order was made upon an affidavit made by one of the defendant's attorneys, alleging that, prior to the commencement of this action, an action had been brought against this defendant by one John II. Brown, a passenger upon the same train, for injuries sustained in the same accident. That action was referred to Hon. Josiah SUTHERLAND by consent of the parties, was tried before him, and resulted in a report in favor of Brown for $7,500. The same counsel who appear in this case appeared in and tried that action on behalf of both parties. In the action of John H. Brown, a great mass of testimony was adduced, the taking of which necessarily occupied much time, and occasioned heavy expense. The stenographer's fees alone amounted to over $600. The issues in this action are precisely similar to those in the case of Brown, and involve going over the same ground; except that some additional testimony will be admissible in this case on account of the deceased having been an employee of the defendant. Upon proof of these facts the court ordered a reference of this action to the same referee before whom the Brown case was tried, and provided in the order that the testimony taken in that case might be read by either party to this action, and if so read, should be considered as having been taken in this action; limited the defendant in his defense, and required him to pay without recourse SECOND DEPARTMENT, SEPTEMBER TERM, 1880. the referee's fees and also the stenographer's charges for all additional testimony. The court at General Term said: "It is very clear that the court is not authorized to order a reference of an ordinary action of this kind without consent. Nor can the order appealed from be sustained as a proceeding to reach or affect a fund in court. There is no fund in court, and the action is one to recover damages for a breach of duty by one who is operating a railroad, by the order of the court. The plaintiff having obtained leave to sue him, she is entitled to prosecute her action in the mode which the law has provided. Her rights in that respect are the same as if the plaintiff were seeking to enforce a personal instead of an official liability. For it is obviously the duty of the court to afford the usual and appropriate means of obtaining justice to a party who applies in a regular manner for the enforcement or protection of his rights. The other provisions of the order are also unwarrantable." Wm. W. Badger and David Mitchell, for the appellant. E. B. Hinsdale, for the respondent. Opinion by GILBERT, J. Present-BARNARD, P. J., and GILBERT, J. Order reversed, with costs and disbursements. DAVID S. DUNCOMB AND ERASTUS F. MEAD, TRUSTEES, PLAINTIFFS, V. THE NEW YORK, HOUSATONIC & NORTHERN RAILROAD COMPANY AND OTHERS, DE FENDANTS. Trustee of corporation—what contracts made by him with the company will be sustained when he may enforce, equally with other bond holders, bonds given by the company to him to secure a debt-he cannot do so when the money for which the debt was incurred did not go to increase the fund from which the bond holders are |