BOOKSTAVER, J. From the complaint it appears that James and George Stewart commenced an action in the supreme court, Second department, against S. S. Hepworth and the executors of Joseph Colwell, deceased, in which the Stewarts claimed that Hepworth and Colwell were copartners, under the firm name of S. S. Hepworth & Co., at the time of the latter's death, and that the former was empowered by the articles of copartnership to carry on the business as survivor for a fixed time after Colwell's death; that during this time Hepworth contracted debts with the Stewarts, and many others, on account of the business, and finally became insolvent, and made an assignment, both individually and as partner of S. S. Hepworth & Co.; that the estate of Colwell was liable for such debts, and sought to sequester his estate for the purpose of paying their debt. After that action was tried, and before its determination, the plaintiff in this was appointed receiver of the property of Colwell by an order of the supreme court, Second department, dated February 4, 1888. That order directed the executors of Colwell, and all other persons, to deliver and assign all the property, etc., of the estate of Colwell, to the receiver, and authorized him to employ an attorney, and to commence any action or actions, at law or in equity, for the benefit or protection of the estate. The receiver duly qualified, and gave the bond required by the order. Thereafter the court rendered its decision, and dismissed the complaint of the Stewarts as against the executors of Colwell. After the decision, and before the entry of judgment thereon, another order was made by the supreme court, dated February 25, 1888, which continued the receivership, and all the powers and duties of the receiver, pending an appeal to the general term of that court, and to the court of appeals, in case one should be taken, and also until the further order of the court. Afterwards judgment was entered. An appeal was taken to the general term, where the judgment was affirmed, from which an appeal was taken to the court of appeals, and this is still pending. Further allegations in the complaint show that Hepworth, while acting as surviving partner of S. S. Hepworth & Co., had certain notes, made in the firm name, discounted by the defendant, a national bank; that these notes were not paid at maturity; that the executors of Colwell kept an account, as such executors, with the defendant bank, and that on the 31st of January, 1888, the balance due this account by the bank amounted to $4,619.28, or thereabouts; that the bank, without the consent of the executors, applied this balance towards the payment of the notes so discounted, claiming, as did the Stewarts in their action, that the general assets of Colwell's estate were liable for the debts incurred by Hepworth subsequently to Colwell's death, in the continuation of the business under the copartnership agreement before referred to. The complaint also shows that, after the plaintiff had qualified as receiver, he demanded the sum of $4,619.28 of the defendant, and also served it with a copy of the order appointing him receiver, and continuing the receivership, but that it has refused to pay, etc. Defendant contends that, upon the entry of the judgment dismissing the Stewart complaint, the plaintiff's functions as receiver ceased ipso facto, and his powers were at an end. Had the receiver been appointed solely to pro

tect Stewart's interest in the Colwell estate, the contention would have been well founded; for the judgment determined they had no interest in that estate. In general, when the plaintiff is defeated in an action where a provisional remedy has been granted pendente Site, whether such remedy consists in an injunction, order of arrest, or order appointing a receiver, the provisional remedy falls with the action, and cannot be revived by the plaintiff pending an appeal. Fellows v. Heermans, 13 Abb. Pr. (N. S.) 3; Spears v. Mathews, 66 N. Y. 127; People v. Bowe, 81 N. Y. 45; Dusenbury v. Keiley, 85 N. Y. 388. But in this case it is apparent from the orders that they were not granted for the sole benefit of the plaintiffs in the action, but rather to protect the interests of the defendants,-the executors of Colwell,-and to preserve his es

tate. I do not know what appeared before the court granting the orders to induce it to make them, nor can I tell why the executors were not left to make such demands against the debtors of the estate represented by them as they saw fit, and to prosecute such demands in their own way. The orders were evidently made in view of the judgment to be entered, and although the appeals contemplated in the orders could have been taken, and the judgment stayed pending them, without in any way preventing the executors from prosecuting their alleged claim against the defendant in this action, yet I must assume that the court made them for what appeared to it sufficient reasons, and the only question I have to consider is whether or not it had the power.

It had jurisdiction both of the persons and the subject-matter of the controversy. It can appoint a receiver, both pendente lite and after final judgment, to preserve the property pending an appeal. Code, § 713. The first order was made pendente lite, and the second in contemplation of the judgment to be entered. Had the last been made after the judgment, there could be no question as to the court's power to make it, and I think it is such an order, in effect, as it was made after the decision of the action, when nothing remained to be done but the formal entry of judgment.

Nor can I see how the defendant is in any way prejudiced thereby. It can avail itself of any defense it could have interposed to an action brought by the executors, and a judgment in its favor in this action will be conclusive against the executors, whose interests the plaintiff represents, as he was appointed by orders made in an action to which they were parties, and on their appearance, and from which, as far as appears, they have not appealed. I think the orders appointing the plaintiff receiver, of themselves so far invested him with the executor's title to the alleged claim against defendant as to enable him to maintain this action without a special averment of an assignment to him of it, and that the demurrer must therefore be overruled, with costs, but with liberty to the defendant, on the payment of costs, to answer within 20 days.

FLOCKTON . ALDRICH.

(Superior Court of New York City, Special Term. February 5, 1889.) BENEVOLENT SOCIETIES-IMPROPER USE OF FUNDS-INJUNCTION.

A benevolent society, formed for the promotion of the interests of the theatrical profession, the constitution of which provides rules applicable to the admission of actors "in any part of the world" as members, will be enjoined pendente lite from expending money to be used in defraying the expenses of a committee to present to congress a memorial, recommending that the contract labor law be so amended as to prevent the importation of foreign actors under contract for a term of service in the United States, the purpose of the expenditure being foreign to the objects of the order.

On motion to dissolve injunction.

Action by C. P. Flockton against Louis Aldrich, president of the Edwin Forrest Lodge Actors' Order of Friendship to restrain the expenditure of $500 in sending a committeee to present to congress a memorial recommending that the contract labor law be so amended as to prevent the importation of foreign actors, except stars.

John Delahunty, for plaintiff. Robert G. Ingersoll, for defendant.

DUGRO, J. The question presented by the papers submitted is whether the Edwin Forrest Lodge, (an affiliated lodge of the Actors' Order of Friendship,) in ordering the sum of $500 to be paid to a certain "labor committee" for use in defraying the expenses of said committee in the city of Washington while endeavoring to influence the passage of an act of congress pending in the house of representatives, to amend what is known as the "Contract Labor Law," by including foreign-born actors in the provision of said law, prohib

iting the entry into this country of persons arriving from other countries under contracts for a term of service in the United States, acted within the spirit of the provisions of the constitution and the objects of the association. No express warrant for the expenditure proposed to be made is to be found in the constitution, and, unless it be an expense for the purpose of promoting the interests of the theatrical profession, it is foreign to the objects of the lodge. The second object of the order is: "To improve the character and promote the interests of the theatrical profession." Reading this object in connection with the constitution, and particularly that part of it embraced in section 4, which prescribes the rules applicable to the admission of actors “in any part of the world" as members of the order, it is manifest that the "theatrical profession" referred to in the object stated included the profession in any part of the world. It is possible that the word "any" may not have a meaning which would refer to all parts of the world, but it certainly was intended to apply to parts of the world over which the United States congress has no jurisdiction. This construction of the words being the one which addresses itself convincingly to my mind, I am constrained to the view that the theatrical profession existing here, as well as in countries where our laws are not in force, is the profession referred to by the language used in the objects of the order. The theatrical profession, members of which were eligible for brotherhood in the order, is the profession referred to. This profession is one having members certainly in Europe, and probably elsewhere, and that it would be a promotion of its interests to further in congress the passage of such a law as is proposed I cannot conceive possible, nor is this claimed by plaintiffs. It seems to me that the injunction should be continued pendente lite, as the purpose for which it is proposed to make the expenditure is foreign to the provisions of the constitution and the objects of the order. Had the constitution contained no provision for the admission of actors in any part of the world as members of the order, the defendant's contention would probably have been effective.

GREEN v. GRISWOLD et al.

(Superior Court of New York City, Special Term. July 12, 1888.)

1. CREDITORS' BILL-EFFECT OF FILING-LIEN.

A judgment creditor, by the commencement of a creditors' action against the debtor, acquires a lien on all his property acquired before the action was commenced.

2. SAME-PLEADING-SURPLUSAGE-MOTION TO STRIKE OUT.

The allegation in the complaint that plaintiff brings the suit "on behalf of herself, and all judgment creditors who shall, in due time, come in and seek relief," is not necessary to sustain plaintiff's cause of action; and, no other creditors having come in within due time, a motion by plaintiff to strike the allegation from the complaint should be granted.

Judgment creditors' action by Green against Griswold, judgment debtor, and the Union Trust Company. Plaintiff moves to strike out an allegation in the complaint. For former opinion, see 2 N. Y. Supp. 624.

George Walton Green, for plaintiff. Anthony R. Dyett and Royal S. Crane, for defendant Griswold. Miller, Peckan & Dixon, for the trust company.

O'GORMAN, J. The plaintiff, a judgment creditor of defendant, William N. Griswold, by commencement of this action acquired a lien upon all the property of the said defendant acquired before the action began. Storm v. Waddell, 2 Sandf. Ch. 494; Brown v. Nichols, 42 N. Y. 30. The fact that the plaintiff set forth in her complaint that she brought the suit "on behalf of herself and all judgment creditors who * * * shall, in due time, come in and seek relief, and contribute to the expenses thereof," does not prevent a judgment in favor of the plaintiff alone against the defendants in this action.

Such an allegation was not necessary to the sustainment of plaintiff's cause of action, and plaintiff's motion, now made, that it should be stricken out, is granted. Bank v. Farthing, 101 N. Y. 344, 4 N. E. Rep. 734. In point of fact, no other creditors have come in, in due time, since the commencement of this action, or offered to pay the expenses thereof. The defendant the Union Trust Company is entitled to its costs and disbursements before trial, to be charged as against the defendants Griswold, and not in reduction of the plaintiff's claim. Let findings to that effect be prepared by counsel for the Union Trust Company.

FERRIS et al. v. HARD et al.

(Superior Court of Buffalo, Special Term. May, 1888.) ACTION-SEVERANCE-DEATH OF PARTY.

In an action to foreclose, a prior mortgagee was made a party defendant, and answered, setting up his mortgage as a superior lien. Pending a reference on that issue, he died, and plaintiff proceeded with the reference without an order reviving or continuing the action against his representatives. On filing the referee's report, which sustained the superiority of the deceased mortgagee's lien, plaintiff waived all claim to priority over such lien, and moved for judgment of foreclosure, according to the report, and, in effect, that the action be severed, so far as the deceased defendant was concerned. Held proper practice, under Code Civil Proc. N. Y. §§ 1204, 1205, providing that where, in an action against two or more, a several judgment is proper, the court may require the plaintiff to take judgment against one or more of the defendants, and direct that the action be severed, and proceed against the others.

Motion to confirm report of referee. Code Civil Proc. N. Y. § 1205, is as follows: "Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment against one or more of the defendants; and direct that the action be severed, and proceed against the others as the only defendants therein."

E. C. Hawkes, for the motion. George Wadsworth, contra.

TITUS, J. This action is brought to foreclose a mortgage made by the defendant Samuel B. Hard and wife to Joseph Book, and by him assigned to the plaintiff. The defendant Gideon Hard was a prior mortgagee, and the complaint contained the usual allegation that he had or claimed some interest in the mortgaged premises, which was subsequent, inferior, and subject to the lien of the plaintiff's mortgage. Gideon Hard interposed a separate answer, setting up his mortgage, and asserting the superiority of his lien. The cause was referred to M. P. Fillmore, Esq., to try the issues raised by the several answers of the defendants; and after the evidence concerning the mortgage of Gideon Hard had been taken, and it was apparent that the referee must report in his favor on the issue raised by his separate answer, Gideon Hard died, and the plaintiff's attorney, without the appointment of a representative for the deceased, or the substitution of any one in his behalf, proceeded with the action before the referee, who made his report, whereby he finds, as a question of fact, that the mortgage to Gideon Hard is a prior lien over the mortgage of the plaintiff in suit, and, as a conclusion of law, that the plaintiffs are entitled to the usual judgment of foreclosure and sale for the amount due, with costs, except as against Gideon Hard and other defendants, who had prior liens; that such sale should be subject to the lien of the mortgage to Gideon Hard; and that the plaintiff should recover any deficiency which might exist against the mortgagor, Samuel B. Hard.

The principal facts are agreed upon by the attorneys for the respective par ties. It was conceded on the argument of this motion, and is so stated in the defendants' brief, that Gideon Hard was not a necessary party to the ac tion. It is apparent that he was not a necessary party, and would undoubt

edly, on his own motion, have been stricken out as such, under the general allegation alone in the complaint, that his lien was inferior and subject to the plaintiff's mortgage. While the report of the referee does not attempt to dispose of the issue raised by Gideon Hard by his answer, he would, if alive, or if represented in court, be entitled to judgment dismissing the plaintiff's complaint as to himself, with costs, and such a motion can be made whenever his representatives shall appear in court and ask it.

The plaintiff's attorney has submitted with his papers a stipulation waiving all claim as to priority of plaintiff's mortgage over the mortgage given to Gideon Hard, and that said mortgage shall be deemed and taken to be a prior lien. The plaintiff now asks for judgment of foreclosure and sale of the premises acccording to the report of the referee, and, in effect, as far as Gideon Hard is a party, that the action be severed, and he be allowed to proceed to judgment without him. I have given the points raised by Mr. Wadsworth, who was Gideon Hard's attorney, in opposition to this motion, such examination as their importance seemed to deserve, and am of the opinion that the plaintiff is regular in his practice, and entitled to judgment. It was provided by section 274 of the old Code that, "in an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper.' Many cases arose under this section in which several judgments had been given. It will only be necessary to notice one, which would, under the former Code, be decisive of the questions involved here. In Hancock v. Hancock, 22 N. Y. 568, the action was to foreclose a mortgage. One Smith, as county treasurer, was made a defendant, as the holder of a prior mortgage upon the same premises. Before the trial Smith had been succeeded in office by Seabury, but the latter did not appear, and was not substituted in the action as a party defendant. The cause was tried, and judgment of foreclosure and sale ordered. Judge COMSTOCK, in writing the opinion of the court of appeals, says, in reference to the right of the plaintiff to proceed to judgment without substituting Seabury in place of Smith: "An admitted prior mortgagee is never a necessary party to a foreclosure suit; and consequently, if he dies, or his interest devolves on another pending the action, the proceedings may go on without reviving or continuing them against his successor." Sections 1204 and 1205 of the new Code are substantially a re-enactment of section 274 of the former Code, and would seem to be much broader in their language. In Luce v. Alexander, 4 Civ. Proc. R. 428, it was held that under sections 1204, 1205, Code, the court might render judgment against one or more of the plaintiffs or defendants, and direct the action to proceed against the others. This section has recently been under consideration in the court of appeals, (Stedeker v. Bernard, 102 N. Y. 327, 6 N. E. Rep. 791,) and it was there held that a judgment might be taken against one of the two copartners, in an action on a note made by the firm, where the answer of one of the defendants showed a separate liability as to him. Judge ANDREWs, in speaking of the practice under section 274 of the old Code, says: "The court, in construing this provision, did not limit its application to cases of joint and several liability, but considered it as authorizing a separate judgment, when a separate liability of some of the defendants was established on the trial, although the cause of action, as alleged in the complaint, was joint only," and that "section 1205 of the present Code is quite as comprehensive as section 274 of the former Code, and requires the same construction;" citing McIntosh v. Ensign, 28 N. Y. 169; and Fielden v. Lahens, 2 Abb. Dec. 111.

In this case the court can grant judgment against one or more of the defendants, and in favor of the others, as appears from the facts before me. I car see no reason why the plaintiff may not, on the death of one of such defe ants, proceed with his action against such of the rest as are liable.