It follows, therefore, that on the appeal of Adele Gueutal the interlocutory judgment should be modified as indicated herein, and affirmed, with costs to her payable by the respondents, and that, on the appeal of Myers as executor, it should be modified by directing a dismissal as to him, with costs, but without costs of the appeal, for it does not appear that he presented a formal request or a conclusion of law to that effect and his appeal was taken jointly with Adele Gueutal, and he has been represented by the same counsel. All concur.

GENERAL FIREPROOF CONST. CO. v. BUTTERFIELD.

(Supreme Court, Appellate Division, Fourth Department. March 8, 1911.) 1. COURTS (§ 190*)-MUNICIPAL COURTS-APPEAL-DETERMINATION OF CAUSEREVERSAL.

Under Laws 1909, c. 570, § 55, providing for appeals from the City Court of Buffalo to the Special Term of the Supreme Court, the Special Term has no authority in deciding a case upon the question of accord and satisfaction to dismiss the complaint, but can on reversal only allow a new trial.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 190.*]

2. ACCORD AND SATISFACTION (§ 11*)-REMITTANCES ON CONDITION-ACCORD AND SATISFACTION.

Where an attorney, after collecting money for his client, sent part as a payment in full, an acceptance by the client did not create an accord and satisfaction, as the attorney and his client did not occupy such contractual relations that he could pay part of the fund on condition that all claims to the rest were waived.

[Ed. Note. For other cases, see Accord and Satisfaction, Cent. Dig. §3 75-83: Dec. Dig. § 11.*]

Appeal from Equity Term, Erie County.

Action by the General Fireproof Construction Company against Herbert B. Butterfield. From a judgment for plaintiff in the City Court of Buffalo, an appeal was taken to the Special Term of the Supreme Court, where it was reversed, and, on appeal from that judgment, the judgment of the Special Term was reversed, and that of the City Court affirmed.

Argued before MCLENNAN, P. J., and WILLIAMS, KRUSE, and ROBSON, JJ.

Thomas E. Boyd, for appellant.

Ticknor & Pierce and H. B. Butterfield, for respondent.

WILLIAMS, J. The judgment and order should be reversed, and the judgment of the City Court affirmed, with costs in this court and. the Special Term.

The action was brought to recover moneys collected by defendant, an attorney for the plaintiff, his client, which he refused to pay over, and converted to his own use. The City Court rendered judgment for the plaintiff for the amount claimed, with interest and costs. An appeal was taken to the Supreme Court, where the Special Term reversed the judgment and dismissed the complaint upon the ground (as)

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

stated in the opinion) that the evidence showed that there was an accord and satisfaction between the parties. The court cited and relied on Gribble v. Van Prag Co., 124 App. Div. 833, 109 N. Y. Supp. 242. The Special Term had no power to dismiss the complaint. It could only direct a new trial if it reversed the judgment. Laws 1909, c. 570, § 55.

The only question of fact passed upon by the Special Term was the accord and satisfaction. No attempt was made to review the question as to defendant's liability, in the absence of such accord and satisfaction. We are not inclined to differ with the City Court as to such liability. It saw and heard the witnesses, and its determination of that question should not be disturbed. We come directly to the question upon which the reversal by the Special Term was placed-the accord and satisfaction. The money collected by the defendant belonged to the plaintiff. The defendant, at most, had a lien upon it for his services, and could retain what he was legally entitled to for such services. When the defendant sent the check for a part of the money, he limited his right to compensation to the amount retained by him, and conceded that the amount sent belonged to the plaintiff. Under these circumstances, the plaintiff was not bound to return his own money to defendant under penalty of acknowledging defendant's right to the balance retained. Plaintiff had a right to retain the money paid to it, and sue for and recover any portion of the balance to which it was entitled. It was not a case for the application of the rule of accord and satisfaction. It would not be quite fair for the defendant to say, "I send you an amount which I concede is yours, but, if you take it, you must acknowledge you are not entitled to any part of the moneys I have retained." Eames Vac. B. Co. v. Prosser, 157 N. Y. 301, 51 N. E. 986. In that case, as in this one, the moneys collected belonged to the plaintiff, subject to any legal claims of defendant for commissions existing, and the court held the plaintiff was not bound to return the moneys actually paid over or be precluded from recovering any of the balance under the rule of accord and satisfaction.

The distinction between the Gribble and other like cases and the Prosser Case and this one is that claims were made in the former case for moneys due under contracts. The parties disagreed as to the amount to which the plaintiffs were entitled. The defendants sent checks for certain amounts to be accepted, if at all, in full payment and satisfaction of their claims. The checks were retained and suits afterwards brought to recover the balances claimed. There was no question, as in the latter cases, of title to the moneys sent. The rule of accord and satisfaction was improperly applied in view of the Prosser Case.

Judgment of Special Term reversed and judgment of City Court affirmed, with costs in this court and in Special Term to appellant. All

concur.

(70 Misc. Rep. 195.)

PEOPLE v. COCO.

(Supreme Court, Special Term, Queens County. December, 1910.)

1. GRAND JURY (§ 38*)-PRESENCE OF STENOGRAPHER-EFFECT ON INDICTMENT. A person designated as temporary stenographer to a grand jury, in the absence of the official stenographer, is not required to be a resident of the county, under Code Cr. Proc. § 952q, providing that every stenog rapher appointed under that title should be a citizen and resident of the county where appointed.

[Ed. Note.

For other cases, see Grand Jury, Dec. Dig. § 38.*]

2. GRAND JURY (§ 38*)-PRESENCE OF STENOGRAPHER-EFFECT.

One designated as temporary stenographer to a grand jury, even if lacking the prescribed qualifications, is a de facto officer, and his presence before the grand jury when evidence was taken would not vitiate the indictment.

[Ed. Note. For other cases, see Grand Jury, Dec. Dig. § 38.*]

Peter M. Coco was indicted by the grand jury, and moves to dismiss. the indictment. Motion denied.

Joseph J. Tuohy, for the motion.

Edward R. O'Malley, Atty. Gen. (Arthur C. Train, Special Deputy Atty. Gen. of counsel), opposed.

KAPPER, J. The grand jury of Queens county found eight indictments against the defendant, which he now moves to set aside upon the ground that the grand jury stenographer was not a citizen and resident of Queens county which, the defendant says, are prerequisite qualifications, and that the taking by that stenographer of the testimony given before the grand jury upon which the defendant was indicted violated subdivision 2 of section 313 of the Code of Criminal Procedure, which requires the court to set aside an indictment "When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixtyfour." Sections 262, 263, and 264 of the Code of Criminal Procedure only authorize the presence before the grand jury of the district attorney or one of his assistants. But, notwithstanding these explicit exceptions, the attendance of stenographers upon the grand jury has been authorized by statute since 1885 (Matter of Montgomery, 126 App. Div. 72, 110 N. Y. Supp. 793; People v. Steinhardt, 47 Misc. Rep. 252, 93 N. Y. Supp. 1026), and the codification of all statutes relating to grand jury stenographers permits their appointment by the district attorney in every county of the state and their attendance and presence at the sessions of the grand jury (Code Cr. Proc. § 952p et seq.)

The defendant does not complain of the presence before the grand jury of a stenographer, but says that the stenographer in question was both a citizen and a resident of New York county, and that, as *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

section 952q of the Code of Criminal Procedure provides that "Every stenographer appointed under the provisions of this title shall be a citizen and resident of the county in which he is appointed," the stenographer in question was disqualified, and hence was a person whose presence during the session of the grand jury which considered the charges against him was forbidden by section 313, supra. The answering affidavit on behalf of the people shows that the Governor directed the Attorney General to attend before the Queens county grand jury, summoned at the October, 1910, term of the Supreme Court, for the purpose of aiding in investigating certain alleged offenses by public officials and persons having public business with such officials, and that after an examination of upward of 100 witnesses the official stenographer became ill, whereupon the district attorney of the county temporarily designated the stenographer of whom the defendant now complains.

Section 952w of the Code of Criminal Procedure provides as follows:

"Designation of temporary stenographer. In case of the absence by reason of illness, or other cause; of the official stenographer to any grand jury in any county of this state, the district attorney of the county may designate a stenographer to perform the duties of such official stenographer during such absence, and the stenographer so designated shall receive the compensation which the official stenographer would have received for the same service, and the same shall be deducted from the salary of the official stenographer."

My reading of the section just quoted satisfies me that the Legislature intended to except a temporarily designated stenographer from the prerequisites of citizenship and residence in the particular county. Just what difference it makes whether a duly qualified and sworn grand jury stenographer is a citizen of one rather than of another county is not apparent to me; and, in view of the district attorney's confidential relation to the public interests, it may well be doubted whether the Legislature may so restrict him in his field of selection. People ex rel. Flood v. Gardiner, 157 N. Y. 520, 52 N. E. 564. But, be that as it may, the temporary designation of a stenographer to the grand jury, so far as concerns citizenship and residence in the county, can well be distinguished from the permanent appointment of an official stenographer. A number of reasons might be assigned for the distinction, of which one will suffice. If, on the last day fixed by the statute of limitations for the finding of an indictment, the official stenographer should be taken ill, the administration of the criminal law ought not to fall because the temporary services of a duly qualified stenographer resident in the county cannot be obtained. It will be noted that the section providing a temporary stenographer permits the district attorney to "designate a stenographer to perform the duties of such official stenographer" during the absence or illness of the latter, without any qualification whatever; while the section that fixes the residence qualification plainly refers to the stenographer who is "appointed" as the permanent or "official stenographer."

But, even though the temporarily designated stenographer were within the purview of the section fixing residence and citizenship as a prerequisite, the presence before the grand jury of one lacking those

a stenographer is, at least, a de facto official, and his service stands as a public act. If the district attorney himself, subsequently to the findings of the indictments, had his title to office successfully contested, his acts during his incumbency would be those of a de facto officer and would be upheld.

In People v. Petrea, 92 N. Y. 128, 143, the indictment was found by a grand jury drawn under a statute which the court held to be unconstitutional. But the indictment nevertheless was sustained as the finding of a de facto grand jury. The court say:

"We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant, in fact, enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes. Nothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case. He was entitled to have an indictment found by a grand jury before being put upon his trial. An indictment was found by a body drawn, summoned, and sworn as a grand jury before a competent court and composed of good and lawful men. This we think fulfilled the constitutional guaranty. The jury which found the indictment was a de facto jury selected and organized under the forms of law. The defect in its Constitution, owing to the invalidity of the law of 1881, affected no substantial right of the defendant. We confine our decision upon this point to the case presented by this record, and hold that an indictment found by a jury of good and lawful men selected and drawn as a grand jury under color of law, and recognized by the court and sworn as a grand jury, is a good indictment by a grand jury within the sense of the Constitution, although the law under which the selection was made is void."

In People v. Scannell, 37 Misc. Rep. 345, 75 N. Y. Supp. 500, it was held that an objection to an individual grand juror that he was not a resident of the county where the indictment was found is not available after indictment found, nor can such a disqualification vitiate the indictment.

This being so of grand jurors, it follows that whether the stenographer was a resident and voter of the county cannot be inquired into after indictment for the purpose of setting it aside.

For the foregoing reasons, the motion should be denied; and, in reaching this conclusion, I am impressed with the serious results that would flow from a granting of the defendant's motion. The setting aside of these indictments would require a like ruling in the case of some 60 or more indictments, found and returned by the same grand jury against public officials of Queens county and others who have had dealings with such officials, besides nullifying the results of a mass of investigation carried on by the same grand jury since such indictments were returned. In this investigation upwards of 500 witnesses. have been examined and the services of a special deputy Attorney General have been constantly enlisted for more than two months. The expense to the county and the labors of the patriotic citizens composing the grand jury have been enormous; and, while the legal rights of accused parties must be sedulously preserved, the public interests ought not to suffer on any such shadowy and unsubstantial ground as is here advanced.

Motion denied.