Skinner v. Tibbitts. 51 N. Y. 401, 406). The subject of this action nor the controversy in relation to it in no wise concerns public justice or the public good. It is simply a dispute about the rights of two individuals, one of whom is claimed to be a lunatic, to a farm of lands. In ascertaining the meaning and intent of a statute, where the language is doubtful, the court should resort to the situation of the subject matter of the statute when it was passed (People v. Schoonmaker, 63 Barb. 44). We have seen that for a century, more or less, before this statute was formed, an action at law must be brought in the name of the lunatic, and that it so remained, notwithstanding the various laws passed upon the subject of actions, parties to actions, and proceedings in actions, including the provisions of the Code of Procedure upon those subjects until the year 1845. In that year, the legislature passed an act entitled "An act in relation to the powers of receivers and committees of lunatics and habitual drunkards permitting them to sue in their own names for any debt, claim or demand transferred to them." The theory of this legislation is no doubt based upon the doctrine that the money and choses in action of the parties for whom the receiver and committee were appointed were brought into court to be connected by the court through its officer, the receiver and committee. Then followed the statute of 1874 entitled, "An act to revise and consolidate statutes relating to the care and custody of the insane and the management of the asylums and the duties of the state commissioners. This statute simply re-enacts the statute of 1845 in terms. It would hardly be presumed that the legislature intended under the titles of these statutes and the purposes of them, to change the pleadings and parties to actions, or to divest the owner of his title to said estate and invest the same in the court or in its officers. Now these two statutes are the source or the seed from which it is Skinner v. Tibbitts. claimed the codifiers derived section 2340. That is undoubtedly so, but not the interpretation which is sought to be given it. It seems to me, considering the language employed, the state of law upon this subject when section 2340 was was adopted, and its genesis, that section 2340 was intended to apply to the certain subjects only-viz: debts, claims and demands and not at all to the subject of real estate, -over which it has been held (in the cases herein before referred to) the courts have no power except to order a sale to pay debts; and in that case the deed has to be in the name of the lunatic, and signed and sealed in his name by the committee (Matter of Krott, 11 N. Y. 52). My conclusion is, that the motion for a non-suit was properly denied; what should be done in respect to the amendment, or what course the plaintiff may deem advisable is not properly before me upon this motion made by defendant. Should the verdict of the jury be set aside as against the weight of evidence, of course, there is not and cannot be a definite rule to be applied to the determination of motions upon this ground, but each case must depend upon its own characteristics and circumstances (Kelly v. Frazier, 27 Hun, 314; Barrett v. Third Avenne R. R. Co., 628). This being an action of ejectment, the defendant is entitled to a new trial upon the payment of costs. The ordinary terms of granting a new trial upon the ground that the verdict is contrary to the evidence is the payment of the costs. The defendant will probably have a new trial if he chooses to. It is hardly worth while for me to analyze and weigh the evidence of the various witnesses in this case, which I ought to do before definitely passing upon that question. If such motions are to be disposed of by the impression produced upon the mind of the court by the evidence at the trial, or from the court's recollection of the evidence, I think I was Frost v. Kopp. then and am now prepared to dispose of this motion; but such, I apprehend, is not the rule. It is better and easier for the defendant to take his new trial under the statute. Motion denied, with $10 costs. FROST v. KOPP. CITY COURT OF NEW YORK, SPECIAL TERM, DECEMBER, 1887. § 2919. Abatement of action-Replery in district court-Liability of sureties in undertaking. An action abates when it is defeated or fails and the legal power to continue it has terminated. All jurisdiction of a district court over an action commenced therein terminates on the failure of the justice to decide the case within eight days after it was finally submitted to him for decision, and in that case it abates within the legal meaning of that term as employed in an undertaking given to replevy a chattel. The sureties in an undertaking given to replevy a chattel in an action brought in a district court in the city of New York are liable thereon where the action abates by reason of the failure of the justice to decide the case within the statutory time. They are supposed to have contracted with reference to this contingency. The presumption that the justice would do his duty is to be overcome, like in any other presumption by proof to the contrary to that effect. The ad damnum clause of a complaint if not open to a demurrer. (Decided December 8, 1887). Demurrer to complaint. This action was brought to recover upon an undertaking, given by the defendants as sureties upon the replevying of a piano in an action of claim and delivery brought by the defendant Pauline Kopp against the pres Frost v. Kopp. ent plaintiff in an action in the district court in the city of New York; that action was brought to recover the said piano, which was valued at $200, and the plaintiff, to secure possession thereof, gave their undertaking in which the defendants jointly and severally undertake, pursuant to the statute in such case made and provided for the prosecution of the action, in the sum of four hundred dollars, for the return of said chattel to the defendant, if possession thereof is adjudged to him, or if the action abates or is discontinued before the chattel is returned to the defendant, and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff." Under the order made upon the giving of this undertaking, the piano claimed was seized by the city marshal and delivered to the plaintiff in that action, the defendant herein, Pauline Kopp; that action was thereafter tried before a justice of the district court in the city of New York, who reserved his decision and failed to render it within the eight days fixed by the statute for the so doing; thereafter, the defendant in the district court action brought this action and the complaint was demurred to by the defendants herein on the ground that it did not state facts sufficient to constitute a cause of action. Joseph Steiner, for defendant and demurrer. H. A. Brann, for plaintiff, opposed. MCADAM, Ch. J.-An action abates when it is defeated or fails and the legal power to continue it has terminated. All jurisdiction over the district court action terminated on the failure of the justice to decide the cause within eight days after it was finally submitted to him for decision (Consol. Act of 1882, § 1384; 4 Den. 72; 4 E. D. Smith, 279; 1 Hilt. 300; 1 Daly, 485; 4 Abb. N. C. 187). The action failed, and the power to continue it Frost v. Kopp. terminated. The plaintiff did not succeed in obtaining a recovery, and in this sense she was defeated in the purpose of her action. The action, therefore, abated within the legal sense of that term as employed in the undertaking. The question is not new. It came before this court in Tone v. Hetherington (Daily Reg. October 7, 1881), and such was the interpretation then applied to similar circumstances. It was presented in the city court of Brooklyn before Judge REYNOLDS, in Bartsel v. Evarts. Judgment was directed against the sureties for the value of the property. The sureties paid the judgment, and thereafter sued the justice to recover back the moneys they were obliged to pay by reason of his failure to decide the action pending before him within the statutory time. The court of appeals held that the action against the justice was not maintainable (Evarts v. Kiehl, 102 N. Y. 296). The defendants, however, are clearly liable. They are chargeable with a knowledge of the law, and presumably knew that if the justice failed to decide the case within the statutory time the action would abate, and they are supposed to have contracted with reference to this contingency. The liability is one which the nature of the case made possible, and this, being known to the sureties, was fairly within their contemplation when they executed the undertaking now sued upon. It may be argued that the justice being a public officer, the sureties had the right to assume that he would perform his judicial duty. They had. But as this is a mere inference, it may, like any other presumption, be overcome by proving the contrary to be the fact. The complaint alleges, that the defendant, by demurring, admits that this duty was neglected in the present instance. The presumption is thereby effectually overthrown. The $400 claimed is the penalty of the undertaking. The damages recoverable are limited to $200, the value of the property as stated in the undertaking. As the ad damnum clause of the complaint is not open to demurrer |