Rinaldo. Housmann,

Code), by reason of anticipated concealment, it must appear or be presumable that such concealment of the debtor will be within the State.

The plaintiff, taking supplementary proceedings against the defendant, against whom he had obtained judgment, applied for an order of arrest, under section 292,-which provides that "Instead of the order requiring the attendance of the judgment debtor, the judge may upon proof by affidavit or otherwise, to his satisfaction, that there is danger of the debtor's leaving the State, or concealing himself, and that there is reason to believe he has property which he unjustly refuses," &c., issue a warrant of arrest.

LAWRENCE, J.-The arrest of the defendant under the fourth subdivision of section 292, is only allowed when there is danger of the defendant leaving the State or concealing himself. From the affidavit laid before me it appears that the defendant is in Philadelphia, so that it cannot be said that there is danger of his leaving the State. The proof as to his concealing himself, in my opinion, should show that, being in this State, the defendant conceals himself, &c. I do not regard the affidavit as making out a case within the statute. Application denied.

RINALDO v. HOUSMANN.

N. Y. Common Pleas; Special Term, January, 1877.

SPECIFIC PERFORMANCE.

It is enough if the vendor, at the time and place fixed for performance, has the incumbrancers present, ready to discharge the in

Rinaldo v. Housmann.

cumbrances held by them, upon performance by the purchaser. Actual discharge before and independent of performance is not necessary.

Trial of action for specific performance.

On January 26, 1876, the plaintiff entered into a contract with the defendant, for the sale of certain premises in the city of New York, at the price of $26,000, to be paid as follows: $2,000 upon the signing of the agreement, $6,000 by assuming a mortgage upon the premises, and $18,000 in cash, which was to be paid on the 15th of February, 1876, on which day the deed was to be delivered. There were mortgages on the premises amounting to $20,000, and on the day fixed for the passing of the deed, the defendant attended at the place designated, with his money, and the plaintiff was ready with his deed, and had procured the attendance of the mortgagees, who were ready, upon the receipt of the amounts due them respectively, to surrender their mortgages and execute satisfaction-pieces thereof.

The defendant having refused to accept the deed and pay the purchase price, this action was commenced for a specific performance.

The defense interposed is the existence of the mortgages.

Albert Cardozo, and Jacobs & Sink, for plaintiff, -Cited Hinckley v. Smith, 51 N. Y. 21.

Culver & Wright, for defendant,-Cited Morange v. Morris, 3 Abb. Ct. App. Dec. 314.

* See also Delavan v. Duncan, 49 N. Y. 485; Freedman v. Dewees, 33 Super. Ct. (J. & S.) 450; Lenihan v. Hamann, 14 Abb. Pr. N. S. 274; Herbert v. Smith, 6 Lans. 493. As to right of retainer, see Reading . Gray, 37 Super. Ct. (J. & S.) 79; Lounsbury v. Potter, Id. 57; Hale v. Hayes, 54 N. Y. 389.

Rinaldo v. Housmann.

VAN BRUNT, J.-I am aware that the language of the court in the case of Morange v. Morris sustains the defendant's position in this case: the court say that "it is the duty of the defendant [seller] to have caused them [the mortgages] to be discharged before the time arrived at which he had stipulated to convey."

The laying down of so broad a principle was not necessary to a decision of that case.

The case of Hinckley v. Smith, 51 N. Y. 21, is a much later authority, and is in direct conflict upon this point with the case of Morange v. Morris. The case of Hinckley v. Smith lays down the rule that the seller must be in a position at the time he is to convey, and upon the receipt of the purchase price, to deliver just the title which he has agreed to convey,

In the case now at bar, the evidence shows that if the defendant had shown any inclination to take the title, there would have been delivered to him, simultaneously with the payment of the purchase price, satisfaction-pieces of the mortgages about which complaint is now made. I do not think that any purchaser can require more than that he shall receive when he parts with his money a deed conveying the premises to him, together with releases of all claims which he has not assumed.

I am of the opinion, therefore, that the plaintiff, having been in a position to have satisfaction-pieces of this mortgage delivered to the defendant simultaneously with the payment of his purchase money, has done all he was required to do, and is entitled to a decree for specific performance.

Judgment accordingly with costs.

There was no appeal.

Heyman v. Beringer.

HEYMAN v. BERINGER.

N. Y. Supreme Ct., First Department; Special Term, October, 1876.

FORECLOSURE OF MORTGAGE.-ATTORNEY.-PAYMENT.

An attorney, with whom a mortgage, over-due, is entrusted "to be foreclosed," is not authorized to receive notes for its payment, payable at a future day, nor is he authorized to extend the payment.*

The payment of such notes to the attorney, who misapplies the proceeds, is not a payment on the mortgage.

Trial by the court of an action by Caroline Heyman, to foreclose a mortgage on real estate. Defense, payment to attorney of mortgagee.

The facts are sufficiently stated in the opinion.

* An attorney or counsel, may stipulate to submit to conditions lawfully offered by the court, but cannot compromise the claim of his client, or satisfy a judgment in his client's favor, without payment, in the absence of special authority. A party dealing with him is bound to take notice that he has no such authority. Cox v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 419; rev'g 4 Hun, 176; S. C., 6 Sup'm. Ct. (T.& C.) 405. See also, besides cases there cited, the next case in this vol. and Doubleday v. Kress, 50 N. Y. 410; rev'g 60 Barb. 181; Wilcox v. Woodhall, 2 Cai. 250; Devlin v. Mayor, &c. of N. Y., 15 Abb. Pr. N. S. 31; Mandeville v. Reynolds, 5 Hun, 338. As to restricted authority after judgment, see Richardson v. Talbot, 2 Bibb (Ky.) 382; Carstens v. Barnstorf, 11 Abb. Pr. N. S. 442; Harrow v. Farrow, 7 B. Monr. (Ky.) 126; Hinkley v. St. Anthony Falls Co., 9 Minn. 55; Jackson v. Bartlett, 8 Johns. 361; Lynch *. Commonwealth, 16 Serg. & R. 368.

As to implied power to satisfy or release, see Kellogg v. Gilbert, 10 Johns. 220; Jewett v. Wadleigh, 32 Me. 110; Bank v. Evans, 18 Miss. (10 Sm. & M.) 35.

As to implied power to issue and discharge from final process, see Brackett v. Norton, 4 Conn. 522; Erwin v. Blake, 8 Pet. 18; Washington v. Johnson, 7 Humphr. (Tenn.) 468; Silvis v. Ely, 3

Heyman v. Beringer.

Joseph H. Choate, for the plaintiff.

William Strauss, for the defendant.

VAN VORST, J.-The mortgage being overdue was entrusted by the plaintiff to Levinger, an attorneyat-law, for foreclosure. Authorized to foreclose, he could without doubt receive payment. The object of the foreclosure, was to realize the amount of the mortgage; the attorney could well receive that before as after suit brought. But the attorney could receive money only. He had no authority to receive the notes of the mortgagor, payable at a future day, and in effect extend the payment of the mortgage (Hutchings . Munger, 41 N. Y. 158; Fellows v. Northrup, 39 Id. 117; Beers v. Hendrickson, 45 Id. 665). Nor was the attorney authorized, under his employment to foreclose, to receive a part of the mortgage debt, and postpone the payment of the residue. The foreclosure could be prevented only by a payment of the entire mortgage debt, or a tender of the same.

It is quite clear that Levinger had no authority to take the notes in question, either as payment, or as a promise of payment in the future; and in law, the mortgagor is chargeable with knowledge of the attorney's want of power to receive the notes. As far as the plaintiff's rights are concerned, they are not

Watts & S. 420; Scott v. Seiler, 5 Watts, 235; Simonton v. Barrell, 21 Wend. 362.

As to implied power to deal in such manner as to exonerate surety, &c. Union Bank v. Govan, 18 Miss. (10 Sm. & M.) 333; Union Bank v. Geary, 5 Pet. 98.

As to continuance of retainer till end of litigation, see Langdon v. Castleton, 30 Vt. 285; Bathgate v. Haskin, 59 N. Y. 533; rev'g 5 Daly, 361.

According to some authorities the implied powers of an attorney for a non-resident and absent creditor, are more extensive than those implied in other cases. See Glass v. Thompson, 9 B. Monr. (Ky.) 235; Hopkins v. Willard, 14 Ft. 474; Kimball v. Perry, 15 Id. 414.