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There is no allegation whatever in the first place that any creditor has acquired any rights superior to the mortgage as a result of its want of filing. All those persons who, it is alleged, became creditors of the company, became such while the mortgage was in full force under the proper filing, and Innet's title was acquired under similar circumstances. Besides, nothing is shown making it the duty of the defendants to refile this mortgage.

It does not appear, therefore, that any facts have been set forth in the complaint which would entitle the plaintiff to the relief demanded. The judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to amend upon payment of costs in this court and in the court below. All concur.

FOX v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. January 7, 1904.)

1. STREET RAILROADS-REFUSAL TO TRANSFER-PENALTY-ACTION.

Under the Railroad Law, § 104 (Laws 1890, p. 1082, c. 565, as amended by Laws 1892, p. 1406, c. 676), providing that for every refusal to comply with the act the corporation so refusing shall forfeit $50 to the aggrieved party, the passenger to whom a transfer is refused in violation of the act is the aggrieved party.

2. SAME-ACTION BY INFANT.

A minor to whom is refused a transfer from one line of railway to another, in violation of Railroad Law, § 104 (Laws 1890, p. 1082, c. 565, as amended by Laws 1892, p. 1406, c. 676), is entitled, under Code Civ. Proc. § 468, to bring an action, through a guardian ad litem, for the penalty provided in the act.

Appeal from Municipal Court.

Action by De Witt Fox, an infant, by Charles R. Fox, his guardian ad litem, against the Interurban Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

Mark Charles Platt (Harcourt Bull, of counsel), for appellant. Henry A. Robinson (Arthur K. Wing, of counsel), for respondent.

GREENBAUM, J. The plaintiff, by his guardian ad litem, brought this action to recover a penalty of $50 under the provisions of sections 39, 101, and 104 of the railroad law (chapter 565, p. 1082, Laws 1890, as amended Laws 1892, pp. 1405, 1406, c. 676), for an alleged refusal of a transfer from one line of railway operated by defendant to another line, also operated by it.

At the opening of the trial, and without taking any testimony, the complaint was dismissed by the court, upon defendant's motion that "the plaintiff, being an infant, was not the proper party to bring the action, but that as the father or the natural guardian of the said infant was the party who would be requested to pay the additional fare, if any should be required in the case of a refusal of the transfer, he, and not the infant plaintiff, was the aggrieved party, within

the meaning of the section of the railroad law cited, and therefore the proper party to bring the action."

The sole question presented upon this appeal, arising upon plaintiff's exception taken to the dismissal of the complaint, is the right of the plaintiff to maintain this action in his own name. The respondent cites no authority for his proposition that the "father or natural guardian of the infant would be required to pay the additional fare," and that he would be the "aggrieved party" to whom reference is made in the railroad law. Section 104 of the railroad law provided, inter alia, “for every refusal to comply with the requirements of this section, the corporation so refusing shall forfeit fifty dollars to the aggrieved party." Respondent calls attention to section 39 of the railroad law, which specifically provides a penalty of $50 for the execution of excessive fares by a railroad company, "to be recovered with the excess so received by the party paying the same," and argues that the courts in construing this section have practically held "that the purpose of the penalty is that of affording compensation to the person paying the excessive fare, rather than that of punishing the railroad company." It is therefore argued that the same reasoning would apply to the provisions of section 104 of the railroad law, and that, as it is the duty of the parent or natural guardian to provide his minor son with the necessaries of life, the former would be obliged to provide the money for the second fare, and would, in the contemplation of the law, be the loser thereby, and therefore "the party aggrieved."

It seems to me that the fallacy of the reasoning of the learned counsel for the respondent is apparent, for the following reasons:

First. The paying of a fare on a car line is not ipso facto a necessity which the parent is obliged to furnish his child. It may be that walking would be more beneficial to the child than riding in the car, and therefore be far from a necessity. Then, again, it may appear that the father was of insufficient means, and the child of considerable property, in which case there would be no obligation on the father's part to supply even necessaries. It thus seems reasonably clear that the court cannot, without proof of any facts, assume as matter of law that the payment of car fare would be a necessity which the parent or natural guardian must meet.

Secondly. A reading of the railroad law unquestionably shows that the person referred to as the "aggrieved party" is the one previously described in the same section as the "passenger." It therefore follows that the plaintiff, who in this case alleges he was the "passenger" to whom the transfer was denied, must necessarily be the one who, in the language of the railroad law, is the "aggrieved party."

Thirdly. The payment of the fare by the plaintiff to the defendant, and the latter's acceptance thereof, constituted a contract between the plaintiff and defendant, and the alleged failure of the defendant. to issue the transfer gave the plaintiff, by reason of the contractual relations established, and not his father or natural guardian, the right to maintain the action. "Whenever a party enters into a contract with a minor personally, or purchases property of him, or deals with him on his own account, such party must respond to him in an action

86 N.Y.S.-5

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the same as though he was an adult." Tyler on Infancy and Coverture (2d Ed.) § 132. A parent may bring an action for his minor. child's earnings, arising out of the parental duty of maintenance of said child, and upon the theory that the infant children are "the servants of their parents, and laboring for them, though not in their actual employment." Shute v. Dorr, 5 Wend. 204; Gray v. Durland, 50 Barb. 100, 211. The right to maintain an action for the earnings of a minor child by no means confers upon a parent the right to bring every action arising out of a contract made by the infant. Section 468 of the Code of Civil Procedure expressly confers upon an infant the right to bring an action where he "has a right of action." Sufficient has been stated to show that the learned Justice below erred, and that the judgment must be reversed.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(90 App. Div. 204.)

BACON v. GROSSMANN.

(Supreme Court, Appellate Division, First Department. January 22, 1904.) 1. JUDGMENT ROLL-INSERTION IN

TION OF BODY EXECUTION.

POSTEA-AUTHORITY

OF CLERK-DIREC

In making up the judgment roll in the Supreme Court, the clerk has no authority to determine whether the cause of action is such as to authorize an execution against the person, but the attorney for plaintiff must take the responsibility of determining that question from the record; and hence recitals in the postea of the record purporting to authorize such action, and adjudging that plaintiff may so enforce the judgment, were properly stricken out on motion.

Appeal from Special Term.

Action by Nathaniel T. Bacon against Ignatius R. Grossmann. From an order amending the judgment for plaintiff, he appeals. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Selden Bacon, for appellant.

Gormly J. Sproull, for respondent.

VAN BRUNT, P. J. As appears by the clerk's minutes, this action was tried by the court and a jury, and a verdict rendered by direction of the court in favor of the plaintiff. Thereupon the judgment roll was made up by the clerk, the postea in which contained recitals that it appeared from the record that this action was brought to recover money had and received by the defendant to the use of the plaintiff and his assignors, and it being alleged in the complaint that the money sued for was received by the defendant in a fiduciary capacity and that he converted the same to his own use; and it appearing from the pleading that this is an action in which the plaintiff is entitled to satisfy his judgment by execution against the body of the defendant, etc., it is adjudged that the plaintiff recover of the defendant a certain sum of money, and that said plaintiff may enforce the judgment against the

person of the defendant, and that the plaintiff have execution therefor. A motion was made to strike out these recitals in the postea of the judgment roll, which motion was granted, and from the order thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that the propriety of inserting such a provision in the judgment seems to be thoroughly established by the Court of Appeals, citing the case of Moffatt v. Fulton, 132 N. Y. 507, 30 N. E. 992. An examination of the record of this case shows that the question litigated there came up in an entirely different form from that presented to this court upon this appeal. There was no question of regularity whatever brought up upon the appeal in that case. The question litigated there was whether, under the allegations of the complaint, it appeared that the defendant had received the money in a fiduciary capacity, and an execution against the person could issue. It was held by the General Term that the complaint did not authorize an execution against the person, and that therefore the provisions of the postea of the judgment roll allowing such execution were improper. The Court of Appeals decided that the complaint did set out a cause of action, which, upon a recovery, allowed the issuing of an execution against the person. There was no question before the court as to the regularity of the insertion in the postea of any such provision. Questions of regularity can never be raised upon an appeal. The only way in which that question could be raised would be by a motion to strike from the postea of the judgment roll the words adjudging execution against the person, as was done in the case at bar. It is to be determined from the allegations contained in the complaint as to whether the action is one in which an execution against the person can issue. Under the provisions of the old Code of Procedure and of the Code of Civil Procedure as first enacted in reference to arrest, there were certain causes of action where an order of arrest might issue because of the nature of the cause of action. There were certain other actions where, in consequence of facts extrinsic to the cause of action, an order of arrest might issue; and in those cases the right to the order of arrest was established by affidavit, and where it was so established an execution against the person might issue upon the judgment. But in those cases in which the right to issue an execution depended upon the nature of the cause of action, such procedure does not seem to have been necessary. Subsequently the provisions of the Code of Civil Procedure were amended by the consolidation of sections 549 and 550, so that, if the plaintiff desired an execution against the person because of extrinsic facts, he was bound to allege those facts in his complaint, and prove them upon the trial; but, in case of failure to prove those facts upon the trial, he was not prevented from bringing a subsequent action to recover upon the debt. There is no provision of the Code of Civil Procedure which in any way authorizes the clerk to determine the proposition as to whether the cause of action is of such character as to authorize the issuance of an execution against the person or not. That the attorney must take the responsibility of, and it cannot be put upon the clerk.

In the Municipal Court, where the pleadings may be oral, the law requires, when an execution can be issued against the person, that the

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judgment of the justice must so state, and then the clerk must enter such fact in the docket. In the Code of Civil Procedure there is no such provision relating to courts of record, showing that the allegations of the complaint must determine whether execution against the person can issue, and there is no provision authorizing any action of the clerk upon the subject. In the lower courts mentioned, where the pleadings may be oral, of course the record contains nothing to indicate whether the action is of that character or not, and hence there must be a judicial direction.

We think, therefore, that the order was correct, and should be affirmed, with $10 costs and disbursements. All concur.

NEW BOUND v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. January 19, 1904.)

1. NEW TRIAL-GROUNDS-MUNICIPAL COURT ACT.

An order setting aside a verdict, after reciting a motion on behalf of defendant for such relief, on exceptions taken at the trial and on the ground that the verdict was contrary to the evidence, contrary to law, and for excessive damages, stated the granting of the motion, and the Judge in a memorandum, after citing authorities, said that the ver dict was set aside as against the weight of the evidence. Held that, although the memorandum stated as the reason of the court's action a ground not expressly specified in Municipal Court Act (Laws 1902, p. 1563, c. 580) § 254, enumerating the grounds for such relief, yet the memorandum was no part of the record, and the order itself recited causes for the vacation of a verdict expressly enumerated in such section. Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by John Newbound against the Interurban Street Railway Company. From an order setting aside a verdict for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

James A. Allen, for appellant.

Henry A. Robinson (William E. Weaver, of counsel), for respondent.

FREEDMAN, P. J. After the jury had rendered their verdict in this case, the defendant's counsel moved to set aside the verdict "as contrary to law and contrary to the evidence, and as excessive damages and on the grounds set forth in section 999 of the Code. The order appealed from, after reciting that the justice presiding at the trial aforesaid immediately after the rendition of the said verdict having entertained a motion made on his minutes on behalf of the defendant to set aside the said verdict, and for a new trial to be granted upon the exceptions taken on behalf of the defendant at the trial and because the verdict is contrary to the evidence and contrary to law, and is for excessive damages, further says, "Ordered that said motion is granted." The criticism made by the appellant herein that the motion was made and the order granted upon the ground that the verdict was against the