the loss, and that the defendant was kept in ignorance of the forgery until about the 1st day of April. Upon the state of facts here appearing it was not necessary for the court to submit to the jury the question of fact whether plaintiff was guilty of negligence, since his negligence was firmly established as matter of law, by an unexplained delay of 60 days in making a demand upon the bank after knowledge that the defendant had paid the draft upon a forged indorsement. The complaint should have been dismissed. The judgment and order are reversed, with costs, and the complaint dismissed, with costs. All concur. (114 Misc. Rep. 701) LESSER v. LESSER. (Supreme Court, Special Term, Kings County. December, 1918.) 1. Divorce 294-Court cannot, after denying separation, provide for custody and maintenance of children. There is no power, after judgment for defendant in a separation suit, to insert provisions for custody and maintenance of children, in the absence of statute. 2. Divorce 294-Statute held not to authorize judgment of dismissal of wife's suit to be amended to compel to husband's maintenance of children. Code Civ. Proc. § 1771, relating to the custody and maintenance of children, does not authorize a court, after wife's unsuccessful separation suit, to amend the judgment of dismissal by inserting a provision requiring defendant husband to provide for the education and maintenance of the children. Action by Anna Lesser against Louis N. Lesser for separation. On motion to amend judgment dismissing complaint. Motion denied. Aaron W. Levy, of New York City, for plaintiff. LAZANSKY, J. After the trial of this action, resulting in the dismissal of the wife's complaint, by which she sought a judgment of separation, I declined to provide for the custody and maintenance of the children. Robinson v. Robinson, 146 App. Div. 533, 131 N. Y. Supp. 260. Judgment dismissing the complaint on the merits having been entered, a motion is now made to amend the judgment, by inserting a provision requiring the defendant to provide for the education and maintenance of the children. The learned Appellate Division in the case cited followed the rule laid down in Davis v. Davis, 75 N. Y. 221, that the provisions of section 1766 of the Code of Civil Procedure do not empower the court to award incidental relief to a plaintiff, where her claim to principal relief failed, because: "Where the principal relief sought by the plaintiff is denied, no power exists to give judgment awarding the custody of the children of the marriage to the plaintiff and to make provision for their maintenance out of her husband's property." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (188 N.Y.S.) [1] The court held that section 1766 only applies where a judgment of separation is granted. On this basis there could be no power after judgment to insert provisions for custody and maintenance of the children, unless there be statutory warrant therefor. It is insisted that section 1771 gives that power. The only authority cited in support of the proposition is Light v. Light, 124 App. Div. 567, 108 N. Y. Supp. 931. In that case the wife's complaint in an action for cruel and inhuman treatment was dismissed and the custody of the children was awarded to the husband. In that case the court said: "But in the wife's action the court had to award the custody of the child (Code Civ. Proc. § 1771), and properly awarded it to the husband [citing cases]." The court then said: "Section 1766 only relates to a case where a judgment of separation is given, while section 1771 relates to the final judgment in a separation case, whatever it may be." The last sentence is seized upon by the plaintiff, who claims that, this being a separation suit, "whatever it may be," and although she was unsuccessful, and no provision was made for the custody of the children, the court has power under the provisions of section 1771 to amend the judgment, by inserting such directions concerning the children as justice requires. [2] It seems to me that within its very broad statement, that section 1771 relates to a separation case, whatever it may be, the court meant to include only those cases where, regardless of the result of the litigation as to the principal relief, an award of the custody of the children is made to the successful party. Of course, all that was necessary to be decided in the case was that, where the wife's complaint is dismissed, the court may under section 1771 award the custody of the children to the husband. If for no other reason than a practical one, I would, indeed, be glad to accede to a strong inclination to construe the language in Light v. Light, supra, to its fullest extent, and grant the motion made herein. But legislative mandate, even if not practical, and though dubiously conveyed, but plainly construed by the courts, is superior to and overrides that inclination. In matrimonial actions the courts' inherent authority over the custody and control of children has no place. Davis v. Davis, supra. Section 1771 of the Code of Civil Procedure is derived from 2 Revised Statutes (1st Ed.) p. 148, § 59, which provides: "In any suit brought by a married woman for a divorce, or for a separation from her husband, the court in which the same shall be pending, may, during the pendency of the cause, or at its final hearing, or afterwards, as occasion may require, make such order as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may at any time thereafter, annul, vary or modify such order." The Court of Appeals has held in Davis v. Davis, supra, that this section only applies when a decree shall be granted. It seems to me that, as far as the question in hand is concerned, section 59 of the Revised Statutes is practically the same as section 1771 of the Code of 188 NEW YORK SUPPLEMENT (Sup. Ct. Civil Procedure. Salomon v. Salomon, 101 App. Div. 588, 92 N. Y. Supp. 184; White v. White, 154 App. Div. 250, 138 N. Y. Supp. 1082. I am therefore of the opinion that section 1771 of the Code of Civil Procedure does not give the court the power to grant this motion. If my conclusion is correct, there should be legislation which would empower the court in every matrimonial action, regardless of the disposition of the principal question, to make provision for the custody, education, and support of the children of the marriage. If the parties are honestly before the court to have their domestic difficulties adjudicated, it would be for the best interests of all, and avoid other proceedings, to have the whole matter as it affected them and their children adjudicated. It would not be necessary, as it will be here, for a plaintiff to have recourse to the proceedings provided for by section 70 of the Domestic Relations Law (Consol. Laws, c. 14). Motion denied. (114 Misc. Rep. 707) CLARKE v. EIGHTH AVENUE R. CO. (Supreme Court, Trial Term, New York County. December, 1920.) 1. Constitutional law 55-Legislature cannot deprive court of inherent power to control order of business. The Legislature cannot deprive the Supreme Court of its inherent power to control its order of business, and to so conduct the same that the rights of all suitors before it may be safeguarded. 2. Trial13 (4)-Court may direct preference, though reasons therefor have developed after term at which cause was first noticed. Where the reasons for preferring a cause develop after the term for which it was first noticed, the court should nevertheless exercise its discretion and direct the preference. 3. Trial 13 (4)—Statute held not to forbid preference, because motion was not noticed at beginning of term. Code Civ. Proc. § 793, held not to have the effect of inhibiting judicial consideration of an application for preference, because the motion therefor was not noticed at the opening of the term, even though reasons for the exercise of the court's discretion developed after notice of trial was served. Action by Thomas Cecil Clarke, an infant, by his guardian ad litem, Thomas G. Clarke, against the Eighth Avenue Railroad Company. On motion for a preference. Motion granted. R. Waldo MacKewan, of New York City, for the motion. GAVEGAN, J. [1] The Legislature cannot deprive this court of its inherent power "to control its order of business and to so conduct the same that the rights of all suitors before" it "may be safeguarded." Riglander v. Star Co., 98 App. Div. 101, 90 N. Y. Supp. 772, affirmed 181 N. Y. 531, 73 N. E. 1131. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (188 N.Y.S.) [2] Where the reasons for preferring a cause develop after the term for which it was first noticed, the court should nevertheless exercise its discretion and direct the preference. The affidavits here show satisfactorily why the motion was not noticed for the opening of the October term. On the showing made, the discretion of the court should be exercised to promote justice, and not to prevent it. [3] It is asserted that the requirements of section 793 of the Code of Civil Procedure inhibit judicial consideration of the application because the motion was not so noticed, even though reasons which call for the exercise of the court's discretion developed after the notice of trial was served. If such was the intention of the Legislature, it seems clear that the case cited above requires me to hold that the statute cannot have the effect intended. In the case of Waters, Inc., v. Hatters' Fur Exchange, Inc., 185 App. Div. 803, 174 N. Y. Supp. 90, it was held that the ground on which the trial court had ordered the preference did "not afford a sufficient ground for granting a preference of the trial, under the inherent power of the court to control the order of the trial of issues on the calendar, which must now be deemed to be finally established." Hence the Appellate Division could not in that case have decided the question which arises here. For precedents in point, see Reinertsen v. Erie R. R. Co., 66 Misc. Rep. 229, 122 N. Y. Supp. 998, and the cases there cited. The motion is granted, and the cause ordered to be added to the day calendar for December 16, 1920. Motion granted. MARKLE v. OSBORNE et al. (Supreme Court, Appellate Division, Third Department. May 4, 1921.) Mortgages 256-Judgment against mortgagee for burning buildings on premises may not be interposed as defense to assignee's foreclosure. In a foreclosure suit by an assignee of the mortgage, wherein the mortgagor interposed as a counterclaim a judgment obtained by him against plaintiff's assignor, the original mortgagee, for burning the buildings on the mortgaged premises, held, that the admission of such judgment in evidence was error. Kiley and Woodward, JJ., dissenting. Appeal from Ulster County Court. Foreclosure suit by Alfred Markle against Zachary Osborne and others, with counterclaim by defendants. From a judgment allowing the counterclaim, plaintiff appeals. Reversed, and new trial granted. Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, KILEY, and VAN KIRK, JJ. John R. DeVany, of Ellenville, for appellant. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes PER CURIAM. Judgment reversed, and new trial granted, with costs to appellant to abide the event, on the ground of error in receiving in evidence the judgment against the assignor, and without considering any other questions in the case. All concur, except KILEY, J., dissenting, with an opinion in which WOODWARD, J., concurs. KILEY, J. (dissenting). This action was brought to foreclose a mortgage, and tried before the court without a jury. The mortgage bears date November 12, 1915. The terms of payment in said mortgage are as follows: "Interest November 12, 1916, 1917, and 1918. $100, on account of principal, November 12, 1919, and interest, and $100 on account of the principal on the 12th day of November in each and every year thereafter, until the whole of said principal sum of $1,400, together with the interest thereon, shall be fully paid." Interest rate is 5 per cent. Cornelia J. Terwilliger is the mortgagee named in said mortgage, and the defendant Zachary Osborne is the mortgagor named in said mortgage. On the 25th day of December, 1916, the said Cornelia J. Terwilliger, mortgagee, assigned the mortgage to Alfred Markle, plaintiff in this action. The mortgage contains a stipulation that, if there shall be default in payment of principal or interest for 30 days, the mortgagee, may, at her option, declare the whole amount due. The action was commenced January 15, 1918, and in the complaint it is alleged that plaintiff has elected and does elect that the whole amount of said bond and mortgage become due and payable. By another provision the whole amount became due immediately on default of payment as aforesaid. The complaint alleges that the whole amount was due before the commencement of the action. The trial judge, upon evidence introduced upon said trial, found that the mortgagee in said mortgage, Cornelia J. Terwilliger, while she was the owner of said mortgage, and about one year after the date thereof, burned the buildings upon the premises covered by said mortgage; that on December 24, 1917, Osborne, mortgagor, defendant herein, recovered a judgment against her for such destruction in the sum of $1,377.50 damages and $123.15 costs. This amount, with interest, defendant Osborne set up as a counterclaim to any amount that might be found due the plaintiff. Whether this judgment can be used as a counterclaim is the main question upon this appeal. If we adopt the theory pursued by both parties on the trial, the decision of this question depends upon two other questions, namely: Was the plaintiff a purchaser in good faith, without notice? and Is the defendant Zachary Osborne, by reason of any agreement or relation between him and plaintiff, estopped from setting up that defense or counterclaim? Appellant further urges that, in any event, he should have been allowed the $450 received by Osborne as insurance, in addition to the amount he was allowed in the judgment as rendered. The appellant urges that defendant, having set up as one of his defenses conspiracy on part of plaintiff and others, could not abandon it upon the trial and rely upon his other defense. This position of appellant is not tenable. |