SECOND DEPARTMENT, APRIL TERM, 1903. [Vol. 82. gation of its guaranty and to limit the plaintiff's possible recovery herein to the costs of the action up to the time of that settlement. The situation presented, therefore, is that this action is to be regarded for the purposes of this appeal as still pending, and the order discharging the attachment to have been made upon the giving by the principal debtor of money and other securities to the plaintiff, which have been accepted by him in lieu of the statutory undertaking. The case is thus brought within the spirit and meaning of the special act of the Legislature, and must be held to be fairly embraced within the legislative intendment. There can be no difference in principle between the discharge of an attachment by the giving of a bond and such discharge accomplished by the deposit of a sufficient sum of money. The case of Treadwell & Co. v. Mead Mfg. Co. (75 App. Div. 478), relied upon by the appellant, is accordingly inapplicable. It appears by the record in that case that the action was settled by the parties and an order of discontinuance entered, and the only question presented on the appeal was whether under such circumstances authority existed to order the payment of the sheriff's poundage. The conclusion reached was that the court had power to tax the fees and poundage, but had no power to compel the party to the action liable therefor to pay the same. The court held that the only remedy the sheriff had in such a case was to retain the property until his poundage was paid or to sue the party liable for the amount thereof as taxed. The provision of the special act authorizing the enforcement of the liability by order was not considered. The statement in the opinion that that act contains no authority for such an order refers only to a case such as was then under consideration, viz., where the action was terminated because of payment or settlement and the attachment thereupon discharged. It cannot be assumed to relate to a case where the attachment has been vacated, set aside or discharged by order of the court, but the action continues unsettled and undetermined. The authority conferred by the statute was considered by the same Appellate Division in the case of Tribune Association v. Eisner & Mendelson Co. (49 App. Div. 141), and although the order in that case was reversed because there was no proof to justify the amount of the poundage as taxed, the court called App. Div.] SECOND DEPARTMENT, APRIL TERM, 1903. attention to the fact that authority did exist in the county of New York for an order requiring the party liable therefor to pay such poundage. Mr. Justice RUMSEY said (p. 142): "This order was made pursuant to the authority given to the court or judge in the county of New York where an attachment is discharged by the order of the court to make such an order requiring the party liable therefor to pay the sheriff his fees and poundage. (Laws of 1892, chap. 418, § 1, subd. 2.*) If that application had been made by the sheriff before the order discharging the attachment and before the filing of the bond, there is no doubt that the court would have been authorized to require the defendant to pay the fees and poundage as a condition precedent to the delivery of the property. (Lawlor v. Magnolia Metal Co., 2 App. Div. 552.) This authority was not taken away because the defendant chose to procure an ex parte order without notice to the sheriff." In the case at bar the attachment was vacated by an order of the court made apparently ex parte so far as the sheriff was concerned. U pon the service of the order the defendant's attorney promised, according to the affidavit of a deputy sheriff, that his client would pay the poundage, and this averment is only denied to the extent that it is denied that any promise was made on behalf of this defendant. The same attorney represented both defendants, and whatever was done in the interest of one was necessarily for the benefit of the other. The question of the constitutionality of the provision of the statute under consideration does not appear to have been raised at the Special Term, and has not been presented by the brief submitted on this appeal, and need not, therefore, be determined. (Dodge v. Cornelius, 168 N. Y. 242, and cases cited.) The order should be affirmed. WOODWARD, JENKS and HOOKER, JJ., concurred; GOODRICH, P. J., dissented. Order affirmed, with ten dollars costs and disbursements. * Laws of 1892, chap. 418, § 1, amdg. Laws of 1890, chap. 523, § 17, subd. 2.-[REP. SECOND DEPARTMENT, APRIL TERM, 1903. [Vol. 82. HARRIET R. MEAD, Respondent, v. WASHINGTON BROCKNER, Appellant, and JANE O. E. BROCKNER and Others, Respondents. Jurisdiction of the Supreme Court of New York, to direct the sale of mortgayed premises in another State and a conveyance thereof by the mortgagor. The Supreme Court of the State of New York has jurisdiction of an action to foreclose a mortgage upon a parcel of land located partly in the State of New York and partly in the State of Connecticut, and may, when the mortgagors are residents of the State of New York and have been personally served with process therein, provide in the decree that the referee shall sell all the mortgaged land, and that the mortgagors shall convey the Connecticut land to the purchaser. APPEAL by the defendant, Washington Brockner, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of August, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, as directs a sale of that portion of the mortgaged premises situated in the State of Connecticut, and directs a conveyance thereof to the purchaser by the mortgagors. Allan C. Rowe [E. H. P. Squire with him on the brief], for the appellant. Frank L. Young, for the plaintiff, respondent. Arthur M. Johnson, guardian ad litem, for the respondents Harriet Isabel Brockner and Ambrose E. Brockner. HIRSCHBERG, J.: This action is brought in the usual form for the foreclosure and sale of certain real property located on the boundary line between this State and the State of Connecticut and mortgaged by three of the defendants jointly to the plaintiff. All the parties are residents of this State, and the defendants have been duly personally served with process. The decree provides that the referee shall sell all the mortgaged property, and that the defendant mortgagors shall convey the Connecticut property to the purchaser. App. Div.] SECOND DEPARTMENT, APRIL TERM, 1903. That it is within the jurisdiction of both Federal and State courts to make such a decree in the case of the foreclosure and sale of mortgaged property belonging to railroad and other corporations doing business in several States where it is essential that the property should be owned and operated as an entirety, has been often determined. (McElrath v. Pittsburg & Steubenville R. R. Co., 55 Penn. St. 189; Randolph v. Wilmington & Reading R. R. Co., 11 Phila. 502; Mead v. N. Y., H. & N. R. R. Co., 45 Conn. 199; Brown v. Chesapeake & O. Canal Co., 73 Md. 567; Wilmer v. Atlanta & Richmond Air Line R. Co., 2 Woods C. C. 447; Blackburn v. Selma, M. & M. R. R. Co., 2 Flipp. 525; Muller v. Dows, 94 U. S. 444; Farmers' Loan & Trust Co. v. Chicago & A. R. Co., 27 Fed. Rep. 148; Central Trust Co. v. Wabash, St. L. & P. R. Co., 29 id. 620; Boston Safe Deposit & Trust Co. v. Bankers' & Merchants' Tel. Co., 36 id. 288; Georgia Southern R. Co. v. Trust Co., 94 Ga. 306; Union Trust Co. of New York v. Olmsted, 102 N. Y. 729; Harrison v. U. T. Co., 144 id. 326, 332.) The principle upon which the jurisdiction is exercised is that while a court of equity has no power to transfer the title to the alien land by a judgment in rem, it can compel a conveyance by a decree in personam against a party who holds the title and over whom it has acquired jurisdiction. The reason for its exercise is found in the necessity and convenience of disposing of property by a single sale where it cannot be advantageously sold in fragments, and is quite as applicable, in kind, if not in degree, to the case of a house and lot or of a farm situated in two adjoining States, as to the case of a railroad. In the leading case of Muller v. Dows (supra), referring to the objection that part of the property was beyond the territorial jurisdiction of the court, Mr. Justice STRONG said (p. 449): "Without reference to the English Chancery decisions, where this objection to the decree would be quite untenable, we think the power of courts of chancery in this country is sufficient to authorize such a decree as was here made. It is here undoubtedly a recognized doctrine that a court of equity, sitting in a State and having jurisdiction of the person, may decree a conveyance by him of land in another State, and may enforce the decree by process against the defendant. True, it cannot send its process into that other State, nor can it deliver possesAPP. DIV.-VOL. LXXXII. 31 SECOND DEPARTMENT, APRIL TERM, 1903. [Vol. 82. sion of land in another jurisdiction, but it can command and enforce a transfer of the title." Union Trust Co. of New York v. Olmsted (supra) was an action to foreclose a mortgage on a railroad, a part of which was in the State of Pennsylvania. The judgment of foreclosure and sale was in the ordinary form and the mortgaged property was sold under it, but in connection with the motion to confirm the sale motion was made to amend the judgment by inserting a provision requiring the mortgagor to execute a deed to the purchaser. This motion was denied at the Special Term, but the General Term reversed the order and granted the motion. (Union Trust Co. of New York v. Rochester & Pittsburg R. R. Co., 40 Hun, 633.) An appeal to the Court of Appeals was dismissed, that court saying (102 N. Y. 729): “The Supreme Court had jurisdiction over the cause of action and the parties, and its decree is valid although part of the premises covered by it are in another State. Its writ may not be operative there, nor its judgment capable of execution as against that portion of the property, and for that reason the court might have required the mortgagor to execute a conveyance to the purchaser in order that the whole security offered by the mortgage should so far as possible be made effective. (Muller v. Dows, 94 U. S. 444, 450.) This was not done, but the power of the court was not exhausted, and what it might have ordered in the first instance it could still require by amendment." (See, also, Harrison v. U. T. Co., 144 N. Y. 326, 332.) Chase v. Knickerbocker Phosphate Co. (32 App. Div. 400) was an action to redeem from a forfeiture under a lease of lands in another State, and this court held that such an action was cognizable here. Mr. Justice CULLEN said (p. 403): "It is settled law that a court of equity will make a decree against parties of whose persons it has obtained jurisdiction, not the indirect, but the direct result of which is to transfer the title to land beyond the jurisdiction of the court, provided the parties comply with the decree of the court. This rule is applicable in one class of cases but not in other classes. The class in which the rule obtains is defined by Chief Justice MARSHALL in Massie v. Watts (6 Cranch, 148), where he says: Upon the authority of these cases, and of others which are to be found in the books, as well as upon general principles, this court is |