brother $3,000 on account of the purchase money that had been paid by the purchaser. Considering the situation, it seems to me clear that the plaintiff authorized his brother to act for him in the transaction in forwarding the deed and in receiving the consideration to be paid therefor. It was not a ratification, but an original authority to Charles F. Allen to conduct the transaction for both tenants in common, and to receive the consideration paid for a conveyance of the property. Charles F. Allen is dead, and we are deprived of his testimony as to the relation which existed between himself and his brother. The first check was received by Charles F. Allen on February 16, 1893, and the last check was received on November 18, 1896, and no claim was made against Charles F. Allen during all that period down to his death on the 30th of September, 1898. I think that upon the uncontradicted evidence the authority of Charles F. Allen to receive the purchase money for this property was sufficient to justify him in making the indorsement, and that as to third parties who accepted the indorsement and acted upon the faith of it the plaintiff is estopped from claiming that Charles F. Allen had no authority to receive the consideration for this property, and that for that reason the defendant bank's motion for a verdict should have been granted. If, however, there is any doubt about this, I think that there is a complete ratification by the plaintiff of the act of the defendant in obtaining the money paid by the purchaser for this property. The plaintiff proceeds upon the theory that he must, before he can ratify, have had knowledge of the fact that the money was paid by these checks drawn to the order of Charles F. and A. C. Allen; but that, I conceive, is not necessary. To ratify these payments, he must have had knowledge of the fact that the money had been paid to Charles F. Allen; and, if he ratified the payment of the money to Charles F. Allen, the form that that payment took was not material. That he had knowledge that Charles F. Allen had received a portion of the money is clear, and with that knowledge he executed these agreements, extending the time of payment of the balance due. I think. this was a formal ratification of the act of the purchaser in paying to Charles F. Allen the moneys that had been paid.

For these reasons I think the defendant was entitled to the direction of a verdict, and I therefore concur in the reversal of the judgment.

VAN BRUNT, P. J., and HATCH, J., concur.

ALLEN v. BECKET.

(Supreme Court, Appellate Term. November 18, 1903.)

1. CHATTEL MORTGAGE-WAREHOUSEMEN'S LIEN-PRIORITY.

A warehouse company has no lien, as against a mortgagee, on property stored with it in violation of a condition that the mortgagor should not remove the property from the premises without the written consent of the mortgagee, and, if she did, the mortgagee would be entitled to immediate possession, notwithstanding Laws 1897, p. 553, c. 418, art. 6, § 73, giving warehousemen a lien on goods stored by them for their services.

and 118 New York State Reporter

Appeal from City Court of New York, Special Term.

Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses. From a judgment dismissing his complaint and an order denying a new trial, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

James A. Allen, for appellant.

Jacob Fromme, for respondent.

FREEDMAN, P. J. No facts material to the determination of his appeal are disputed. This action was brought to recover the value of certain property covered by a chattel mortgage executed to plaintiff's assignor by one Mary A. Richardson on August 27, 1900, due November 7, 1900, and which mortgage was on August 27, 1900, filed in the office of the register of New York county. There was a covenant in the mortgage to the effect that the mortgagor would not remove the mortgaged property, or any part thereof, from the premises (where the same then was, at No. 255 West Twenty-First street, New York City) without the consent in writing of the mortgagee, and that, in the event of the property being so removed, the sum then remaining unpaid should become due, and the mortgagee be entitled to the immediate possession of the property. On September 4, 1900, the mortgagor, without the knowledge or consent of the mortgagee, removed the property named in the mortgage, and stored the same with the defendant. The mortgagor failed to pay the sum secured by the mortgage when due (November 27, 1900), and on December 17, 1900, a demand in behalf of the mortgagee was made upon the defendant for the possession of the property, who refused to deliver the same unless the storage charges were paid. Defendant bases her right to retain the goods upon chapter 418, art. 6, § 73, p. 533, Laws 1897, which reads as follows:

"A warehouse company, warehouseman or other person lawfully engaged in the business of storing goods, wares and merchandise for hire has a lien for goods deposited and stored with him for his storage charges, and for moneys advanced by him for cartage, labor, weighing and coopering in relation to such goods, or other goods belonging to the same owner; and he may detain such goods until his lien is paid."

In the case of Baumann v. Jefferson, 4 Misc. Rep. 147, 23 N. Y. Supp. 685, it was held that, where the mortgage contained a clause which prohibited removal of the goods from the residence of the mortgagor, etc., and had been duly filed, the warehouseman had no lien upon the property as the property as against the then owner. In the case at bar the mortgagor had not only removed the goods, but had defaulted in payment of the mortgage debt, and at the time of the demand for the possession of the goods was made the title of the mortgagee had become absolute. Although the case above mentioned was decided before the passage of the lien law hereinbefore referred to, we think the same is still applicable to the case at bar. That the Legislature did not intend to give a warehouseman a preferential lien for goods stored over that of a chattel mortgage

duly filed may reasonably be inferred from a reading of article 6, sections 71-74, of the lien law (chapter 418, pp. 532, 533, Laws 1897). Each of those sections except section 73 contain clauses stating when the lien may or may not exist prior to other liens-as, for instance, in the case of the lien of a livery stable keeper, the lien is held to exist "whether such owner be a mortgagor remaining in possession. or otherwise"; but in section 73 no preference is given, and nothing is stated therein tending to show that the lien of a warehouseman is to be preferred over that of a prior lien. So that, if we assume that the plaintiff, at the time the goods were stored, had a lien only, it was prior to that of the defendant, and, his mortgage having been duly filed, the defendant must be deemed to have had notice. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

ALLEN V. BECKET.

(Supreme Court, Appellate Term. November 18, 1903.)

1. EXECUTION AGAINST THE PERSON.

In an action for conversion resulting in favor of defendant (a woman), an execution should not be granted against the person of the plaintiff to collect costs, since the right to such an execution depends on the right he would have had to an execution against her person if judgment had gone against her; and under Code Civ. Proc. §§ 548-551, relating generally to arrests in civil actions, and sections 553, 1488, limiting the right in the case of a woman, she could not have been arrested in this action.

2. TAXATION OF COSTS-DISCRETION OF Court.

It is within the discretion of the court to impose $10 costs upon the plaintiff upon his withdrawal of a motion for a resettlement of an order of the court.

3. RESETTLEMENT OF COUrt's Order-NOTICE-RECITAL IN ORDER.

Where an order was entered by defendant's attorney without notice to plaintiff's attorney, and made no reference to an amended complaint on which it is conceded to have been based, it should be resettled on motion of plaintiff.

Appeal from City Court of New York, Special Term.

Action by Willard S. Allen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses. From three orders made in favor of defendant, plaintiff appeals. First and third orders reversed, and second order affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

James A. Allen, for appellant.
Jacob Fromme, for respondent.

FREEDMAN, P. J. There are appeals from three orders embraced herein: (1) An order made herein on the 4th day of May, 1903, denying the plaintiff's motion to vacate an execution against his person issued upon the judgment for costs rendered herein against. him upon the dismissal of the complaint; (2) so much of an order made on the 6th day of May, 1903, upon the plaintiff's application 84 N.Y.S.-64

and 118 New York State Reporter

for a resettlement of the said order of May 4th, as imposed upon the plaintiff $10 costs; and (3) an order made on the 11th day of May, 1903, denying the plaintiff's application for a resettlement of the said order of May 4th. The action was brought against the defendant, who is a woman, for conversion. At the close of the plaintiff's case the complaint was dismissed, and judgment was entered against the plaintiff for $105.30 costs. After the issuing and return unsatisfied of an execution against the property of the plaintiff, an execution was issued against his person, and he was arrested. Plaintiff moved to vacate this execution. This motion was denied, with $10 costs. It should have been granted. The right of the defendant to arrest the plaintiff upon a body execution depends solely upon the right of the plaintiff to have the defendant arrested had the judgment been against her instead of against him. Section 548 of the Code of Civil Procedure provides: "A person shall not be arrested in a civil action or special proceeding except as prescribed by statute." Section 549 prescribes the cases wherein the defendant may be arrested when the right to arrest depends upon the nature of the action. Section 550 provides when the right to arrest the defendant depends upon extrinsic facts. Section 551 provides that, when the right to arrest depends upon extrinsic facts, the order can be granted only by the court. Section 553 is as follows: "A woman cannot be arrested as prescribed in this title, except in a case where the order can be granted only by the court; or when it appears that the action is to recover damages for a wilful injury to person, character or property." The case where the order can be granted only by the court is, as is stated in section 550, “in an action wherein the judgment demanded requires the performance of an act the neglect or refusal to perform which would be punishable by the court as a contempt where the defendant is not a resident of the state, or being a resident of the state is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual." This action was not brought for any of the causes enumerated in section 550, nor for a cause of action specified in section 553. No order of arrest could, therefore, have been granted herein against the defendant, and under section 1488 no execution can issue against the person of a woman unless an order of arrest has been granted and executed in the action. The defendant was therefore entitled to no body execution. The order denying the motion to vacate the order must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

Upon the appeal from the order of May 6th imposing costs upon the plaintiff upon his withdrawal of his motion for a resettlement of the order denying plaintiff's motion to vacate the execution, we cannot say that the imposition of such costs was such an abuse of discretion in the court below as to warrant our interference therewith. Moreover, the plaintiff accepted the terms imposed by withdrawing his motion, and that order must be affirmed, with $10 costs. As to the appeal from the order denying the motion for a re

settlement of the order of May 4th, it appears uncontradicted that the order of May 4th, denying plaintiff's motion to vacate the execution, was entered by the defendant's attorney without notice to the plaintiff's attorney, and that it did not recite that the motion was based upon "amended" complaint, and stated that "on perusing the complaint and the said execution." While, perhaps, no just criticism can be made upon the use of the word "perused" instead of the word "read" in the order so entered, nevertheless, as the order to show cause was concededly based upon the "amended" complaint, and not upon the original, the motion to resettle it should have been granted to that extent at least. Zimmer v. R. R. Co., 28 App. Div. 504, 51 N. Y. Supp. 247. The order denying the motion to resettle the order is therefore reversed, with $10 costs. All concur.

ALLEN v. BECKET.

(Supreme Court, Appellate Term. November 18, 1903.)

1. COSTS-STAY OF APPEAL.

The entry of, and appeal by plaintiff from, an order granting a motion by defendant, are not stayed by failure to pay costs imposed on plaintiff by a previous order in the same cause, since Code Civ. Proc. § 779, providing for a stay until payment of costs, applies only to some progressive steps taken in the action.

2. VOID ORDER-MOTION TO RESETTLE.

A motion to resettle an order entered without warrant should be denied.

Appeal from City Court of New York, Special Term.

Action by Willard S. Ailen against Mary A. Becket, doing business under the name of Haeger Storage Warehouses, for conversion. From an order granting defendant's motion for a resettlement of a previous order, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

James A. Allen, for appellant.
Jacob Fromme, for respondent.

FREEDMAN, P. J. On May 23d the defendant, upon an affidavit made by her attorney setting forth that, upon the return of the motion made by the plaintiff to vacate the defendant's "second" order, which motion was heard on May 22d (see appeal from order No. 4, 84 N. Y. Supp. 1012), the defendant "appeared and opposed the motion, making a preliminary objection thereto that the $10 costs awarded in the order of May 4th had not been paid, although more than ten days had elapsed since the order was served upon plaintiff's attorney, which plaintiff's attorney admitted to be true," obtained an order to show cause, returnable on May 25th, why the order of May 22d entered by plaintiff's attorney (see above opinion in No. 4) should not be "resettled," and the resettled order entered in place of the order of May 22d aforesaid. The manner in which the order was asked to be resettled was contained in a submitted proposed order which set forth that the aforesaid preliminary objection was made,