FIRST DEPARTMENT, DECEMBER TERM, 1874.

copies, and were not copied from them, and were not, therefore, admissible for any purpose.

III. A perusal of the testimony of the various witnesses, as to the value of the work and services performed and rendered by the defendants in and about the repairing of the Gazelle, seems to me to show that the amount allowed by the referee to the defendants, $21,603.48, as the value of such work and services, was far in excess of the real value. The witness Davis, who, from his experience as the superintendent of the Lancaster Locomotive Works, and from his general experience as a machinist and locomotive builder, was peculiarly qualified to speak on the question of value, testifies that a reasonable charge for rebuilding the Gazelle would be from $7,000 to $8,000.

Nichols, who also testifies to a very extensive experience in the business of building, rebuilding and repairing locomotives, testifies that the total value of the work done would have amounted, after allowing thirty-five per cent for profit, to $9,315.40.

This witness gives in tabular form, the items of repair and a specific statement of the value of each item, which bears the mark of accuracy and exactness; and he seems to me to be altogether the most reliable witness on the question of value produced before the referee. Dougherty testifies that he repaired more fully a larger engine than the Gazelle, in 1864, for $9,275; and McKay, that his charge for repairing a larger engine more completely, in 1865, was $8,400. The plaintiff himself testifies that a very liberal price for the work on the Gazelle would be from $7,000 to 8,000.

nesses.

The witnesses for the defendant do not seem to me to have had the same amount of experience in the business of building or of repairing locomotives as those sworn for the plaintiff, and I am of opinion that their estimates of value are clearly not entitled to the weight which should be given to the estimates of the plaintiff's witThe preponderance of evidence, therefore, seems to me to be so strongly in favor of the plaintiff, on the question of value, that the judgment of the referee should be reversed on that ground, if no other existed. The referee has allowed to the defendants, in adjusting the accounts between the plaintiff and defendants, the sum of $21,496, for work and services which, from the evidence, could not have exceeded in value, the sum of $10,000 or $11,000; and it is

FIRST DEPARTMENT, DECEMBER TERM, 1874.

by this excessive allowance that the plaintiff is made to appear in debt to the defendants. I have less hesitation in arriving at this result, because the evidence shows that an entirely new engine, of the style and character of the Gazelle, could have been built in 1864 and 1865, for $12,500. It seems hardly credible, that the repairs to an old engine at that time, could have been of the value of $21,496. On this branch of the case I am convinced that the finding of the referee is not in accordance with the truth, and that justice demands a reversal of his judgment.

*

IV. Again. The referee has found that the agreement between the plaintiff and defendants, was, that the work should be done by the day's work, that the prices were to be the ordinary shop prices; and that the bills were to be rendered monthly. That fifty per cent was then to be paid, and the balance on the completion of the engine. He also finds "that the defendants performed work and furnished materials toward repairing the engine Quincy,' amounting, according to bills rendered by the defendants and proved to be correct, to about April, 1865, in the aggregate to $2,714.40, upon which the plaintiff had up to that time made payments by cash and materials to $693.76, leaving a balance owing and unpaid to the defendants of $2,020.64," which, with interest to the date of his report, the referee finds amounted to $2,737.55.

It is then found that the defendants suspended work upon the same engine, because the plaintiff made default in the payment of the fifty per cent of the bills referred to, "after which a fire accidentally occurred to the premises of the defendants, by which the same engine 'Quincy' was burned and destroyed."

The referee then proceeds to allow to the defendants the full amount, found by him to be due upon the Quincy at the time the fire occurred, forgetting, apparently, that only fifty per cent of the amount was due at that time by the agreement between the parties, and that the remaining fifty per cent was not to become due until the final completion of the engine-an event which never occurred. The fire was acidental, and does not appear to have been, in any way, connected with or produced by the plaintiff's alleged breach of contract, and he cannot be compelled to do,

* Finch v. Parker, 49 N. Y., 1; Townsend Manuf. Co., v. Foster, 51 Barh., 346; Thompson v. Menck, 22 How., 431.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

in consequence of the fire, otherwise than his contract obliged him to do. *

While, under ordinary circumstances, this error would not be regarded as a ground for an absolute reversal of the judgment, but one which could be remedied by a deduction of the excess allowed to the defendants, I am of opinion that, taken in connection with the other errors in fact above alluded to, it constitutes an additional reason for reversing the judgment.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

DAVIS, P. J., concurred; DANIELS, J., concurred in the result.

JAMES WATSON, RESPONDENT, v. SIMEON E. CHURCH, APPELLANT, AND ANOTHER.

Foreclosure of mortgage — wife's inchoate right of dower — Service of summons upon husband for wife — when sufficient.

Where, in an action to foreclose a mortgage, a summons, directed to the wife, is served upon the husband, the mortgagor, it is his duty to appear and answer jointly for himself and wife; service of the summons upon the wife is only necessary when the proceedings are against her separate estate. (Per LAWRENCE, J.)

In this action, brought to foreclose a purchase-money mortgage given by the defendant S. E. Church, a summons, directed to his wife, was served upon him. He appeared in the action for himself, but not for his wife, and subsequently purchased the premises at a sale, had under the judgment entered in the action. On an application made by him to be relieved from his bid, on the ground that his wife was not bound by the judgment, held, that his application should be denied, as he purchased with full knowledge of the facts, and as in any event the defect was unimportant, the only object of making the wife a party being to cut off her inchoate right of dower, which right she would reacquire by his purchase of the premises.

APPEAL from an order made at the Special Term, requiring the appellant, Simeon E. Church, to comply with certain terms of sale, subscribed by him as the purchaser of certain real estate at a sale under the foreclosure of a mortgage.

* McConihe v. N. Y. & Erie R. R., 20 N. Y., 497, 498.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

Charles Whelp, for the appellant.

Hudson & Straus, for the respondent.

LAWRENCE, J.:

A

This action is for the foreclosure of a purchase-money mortgage, executed by the appellant, Simeon E. Church. The summons was duly served upon the appellant, Simeon E. Church, but was never served upon the defendant, Sophia B. Church, personally. summons, directed to her, was, however, served upon the appellant for his wife, and the same was left with him on the 3d of December, 1873. On the 8th day of January, 1874, the appellant appeared for himself in the action, stating, in his notice of appearance, that it was not thereby intended to admit that this action is brought in any court known to the Constitution or laws of this State, or to waive objections thereafter on that account.

The original summons and complaint were entitled, "Supreme Court of the city and county of New York," and, on the 20th of December, 1873, an amended complaint was filed, entitled, "New York Supreme Court, in and for the city and county of New York."

On the 13th of January, 1874, the appellant signed the following stipulation: "I consent to receive a new amended summons and complaint in this action, without objection that the complaint has been once amended; and I consent that the plaintiff's attorney may at any time, upon this stipulation and without further notice, enter an order striking out from all papers on file in this action the words, ' of the city and county of New York,' in the title of the court, and inserting the words, of the State of New York.'" On the same day, an order was entered in conformity with the provisions of the stipulation.

6

Judgment of foreclosure and sale having been rendered in the action, the premises were sold at public auction by a referee, on the 28th of May, 1874, and the appellant, at said sale, became the purchaser of the same, and thereupon signed the terms of sale set forth in the case. He subsequently objected to taking title under the foreclosure, on the grounds: 1st. That the defendant, Sophia B. Church, was made a party, and was a necessary party to the HUN-VOL. III.

11

FIRST DEPARTMENT, DECEMBER TERM, 1874.

action, but was not served with process, and had not appeared, and was in no way bound by any of the proceedings, or the decree.

2d. That the action was commenced originally in the Supreme Court of the city and county of New York, and that there was no such court known to the Constitution or laws of this State. 3d. That there was no proper affidavit of regularity attached to the judgment roll-no affidavit showing services on all of the defendants, or the appearance or want of appearance of all.

4th. That no notice of sale was served.

By referring to the admissions contained in the case, it will be seen that the last two objections are dependent entirely upon the question, whether Sophia B. Church was ever properly brought before the court; and that they are, therefore, but amplifications of the first objection.

As to the second objection, it is sufficient to say that the alleged defect was cured by the stipulation of the appellant, and the order amending the summons and complaint pursuant thereto.

The only question left in the case therefore is, whether, as the summons was not served upon the wife personally, the appellant can, on that account, object to completing his purchase. We do not think he can. The only interest which the wife had in the mortgaged premises, was an inchoate right of dower. In Leavitt v. Cruger, where the bill was filed to foreclose a mortgage executed by husband and wife, the husband only was served with process, and the chancellor held that the husband was bound to appear and answer jointly for himself and wife, unless he showed a sufficient excuse, and that service of a subpoena on the wife was only necessary when the proceeding was against her in respect to her separate estate. This rule has not been changed by the Code. †

The inchoate right of dower of the wife was an interest resulting from the marital relation, and did not form a part of her separate estate. Furthermore, as the appellant was the purchaser on the sale, and his wife would again become vested with an inchoate right of dower in the premises, upon the execution and delivery of the referee's deed to him, I do not see how the defendant can take

* 1 Paige, 421.

Foote v. Lathrop, 53 Barb., 185; Eckerson v. Vollmer, 11 How. Pr., 42. + Cases, supra.