author: Rosekrans, J.

text:
    Adams & Caswell v. Sage and others.
    Where fraud has been committed by misrepresentation and false statements, and the aggrieved party, with knowledge of the facts constituting the fraud, makes a compromise of the matter without suit, or, after suit brought to redress the wrong, he compromises such suit, the compromise should be held valid in law, although the party committing the fraud may reiterate such misrepresentations and false statements and affirm and reaffirm his integrity in the matter, in order to effect the compromise, and the aggrieved party may thereby be induced to make the compromise.
    Where a party to whoni representations are made has the means at hand of determining their truth or falsehood, and resorts to such means, and after investigation avows his belief that the statements are false, and acts upon such belief by bringing an action to recover money obtained from him by means of the fraudulent representations, he is not entitled to credit when he alleges that upon the reiteration of the truth of the same statements, by the same party, he was induced to enter into'an agreement to settle the suit, and was thereby defrauded.
    This is an appeal by the defendants from a judgment of the Supreme Court in the first district, at a general term, affirming a judgment entered at special term, on the report of Lucius Robinson, referee, in favor of the plaintiffs against all the defendants for $5156.81, damages and costs. The bill was originally filed in the Court of Chancery before the chancellor, in September, 1844, and the case, so far as now material to be stated, is substantially as follows: In July, 1841, the plaintiffs, merchants in Lyons, Wayne county, authorized Hiram Gr. Hotchkiss to purchase for them in Hew York one thousand barrels of pork, if it could be bought for $8.25 for prime, and $10.25 for mess, per barrel. At the same time, and on the 12th off July, 1841, they wrote a letter to Suydam, Sage & Co., the defendants, which they sent by Hotchkiss, to the effect that they had authorized Hotchkiss to make for them the purchase of the pork above stated, and if it should be purchased for the price named or less,, they would put it into the hands of the defendants for sale, in which case they would draw upon the defendants for the amount at three or four months, which the defendants' would get discounted and remit to them. On the next day, July 13, they wrote to the defendants, hy mail, to the same effect. On the 21st of July the defendants answered both letters, giving advice as to the then state of the market, on the receipt of which, July 24, the plaintiffs wrote to the defendants, saying that “if Hr. Hotchkiss has not purchased any [pork] for us, when you receive this you will please say to him that he need not do it.” That letter was received by Sage at Hew York on the morning of the 27th of July. On the 26th of July he had.been negotiating with Hotchkiss to sell him the one thousand barrels of pork for the plaintiffs, and offered it at the plaintiffs’ prices if Hotchkiss would allow him half the commission. After Sage had received and read the plaintiffs’ letter, Hotchkiss called and Sage inquired whether he had determined to accept the offer made on the day before, and Hotchkiss said that he had. The terms qf the bargain were then repeated and it was closed, and Sage then handed Hotchkiss the plaintiffs’ letter. Hotchkiss was surprised, and asked Sage what he should do or say to the plaintiffs, and then Sage wrote out a memorandum of what he should incorporate inghis letter to the plaintiffs on the subject of the purchase. This sale is alleged by the plaintiffs to have been fraudulent, and is so in substance found by the referee before whom the cause was tried, and whose decision is under review. There was a loss of about $4000 on the pork thus purchased, the last of which was sold August 6, 1842. The plaintiffs were informed in July, 1842, of all the facts and circumstances upon which it is alleged the sale was fraudulent. The firm of Suydam, Sage & Oo. having retained the amount of these losses out of other funds of the plaintiffs, in their hands, they (after an ineffectual effort to "settle) commenced a suit in the Supreme Court against Suydam, Sage & Co. to recover the moneys thus retained, and Suydam, Sage & Co. immediately commenced in the Supreme Court a suit against the plaintiffs to recover the amount of loss upon the pork. These suits were put at issue, and afterwards, and in December, 1852, were compromised and settled, and out of that settlement and compromise the present controversy has arisen. The bill in this cause was filed in September, 1844, to vacate the settlement in 1842,' on the ground that it was procured by the fraud of the defendants, and the referee found it fraudulent, and gave judgment in favor of the plaintiffs, on that ground. In respect to this settlement the referee, after finding the sale of the pork fraudulent, finds that the agreement to settle the two suits in the Supreme Court mentioned in the pleadings, was made upon the representations of Sage (one of the defendants) to John Adams, (one of the plaintiffs;) that the said letter of countermand of July 24, 1841, had been handed to and read by the said Hotchkiss before it had been seen by him, the said Sage; that the said sale of one thousand barrels of pork was really made in good faith from pork , which the said Suydam, Sage & Co. had on hand; that there were no fraudulent circumstances attending such sale, and that the loss shown by the account rendered by said Suydam, Sage & Co. referred to in the pleadings, had actually been incurred upon the said one thousand barrels of pork, which representations were untrue, and were known to be so by the said Sage at the time of making them; that the plaintiffs ■ had confidence in such representations, and were thereby induced, to enter into said agreement of settlement. The referee did not find-in his report what knowledge the plaintiffs had of the original transaction, at the time of the settlement, but it sufficiently appears, as will be shown hereafter, that at the time of the settlement they had full knowledge of all the material circumstances attending the sale of the pork, and that upon this knowledge they commenced the suit against the defendants, in the Supreme Court; and when the parties got together to settle the litigation growing out of the alleged original fraud, one party asserted the fraud and the other denied it; and finally, to end the controversy, they agreed to divide the matter in dispute. The plaintiffs now attempt to get rid of that settlement, on the sole ground that the defendants, in the negotiations for a settlement, did not admit the original fraud, hut denied it, and the hill in this cause was filed to accomplish that purpose, upon the allegation that the plaintiffs were deceived by reason of the denial of the defendants that they had committed the original fraud. The defendants' excepted to the report of the referee, both in respect to conclusions of fact and law; and the judgment entered thereon was affirmed at a general term in the first district, (Justice Sutherland dissenting,) 'and the defendants appealed to this court.

      John H. Reynolds, for the appellants.

      Smith & Cornwell, for the respondents.
   Rosekrans, J.

The allegations in the complaint which were verified by the. plaintiffs, and the evidence introduced by them, show clearly that the plaintiffs had full information and knowledge of all the facts which constituted the fraud of which they complain, in regard to the sale of pork by Suydam, Sage & Go. to the plaintiffs, prior to the commencement of the action brought by the plaintiffs to recover the sums they had advanced on account of such fraudulent sales. It is distinctly averred that the plaintiffs received this information ’from their own agent, who negotiated the purchase for them, about the 26th day of July, 1842; that they believed his statement; that in consequence of it they proceeded to" the. city of New York and had an interview with Suydam, Sage & Co. in regard to the matter; and that because Suydam, Sage & Go. did not give the plaintiffs any satisfactory explanation, they commenced their suit against Suydam, Sage & Co. in the same month of July or in August, 1842, to recover the moneys advanced on the fraudulent purchase, believing that the sale was a mere pretense, or, if actually made, that it was made after Suydam, Sage & Co. had received the plaintiffs’ letter countermanding their order for the purchase of the pork, and revoking the authority of their agent to make the purchase. It also appears from the plaintiffs’ evidence, that within fifteen days after the commencement of such suit, Suydam, Sage & Co., in a letter which they wrote to the plaintiffs, of the date of August 12, 1842, contradicted the statements made to the plaintiffs by Hotchkiss, their agent, in regard to the. fraudulent sale, and denounced them as misrepresentations, and proposed an amicable settlement of the suit. And that notwithstanding this the plaintiffs, relying upon the truth of the statements of Hotchkiss, proceeded in the action and noticed it for trial at the circuit in December, 1842. Indeed it appears that as early as May, 1842, the plaintiffs had an interview with Suydam, Sage & Co. at their counting room, in the city of Hew York, in which the plaintiffs contended that the sale of the pork to Hotchkiss was unfair, and alleged that they did not believe Suydam, Sage & Co. had the pork on hand for sale, and that the accounts rendered by Suydam, Sage & Co. to the plaintiffs, of the sales of the pork by. them on the plaintiffs’ account, was a sham, and that the sale to Hotchkiss was made and put upon the plaintiffs after Suydam, Sage & Co. had received'the plaintiffs’ letter countermanding the order for the purchase and revoking the authority of Hotchkiss to make it. In that interview Suydam, Sage & Co. denied the statements of the plaintiffs. Under these circumstances, in December, 1842, the stipulation was made to settle the suit commenced by the plaintiffs against Suydam, Sage & Co., and another suit commenced by Suydam, Sage & Co. against the plaintiffs to recover the balance of their account. This settlement was made upon a retraction by Suydam, Sage & Co. of their denial of the statements made by Hotchkiss to the plaintiffs of the several circumstances constituting the frauds complained of, and upon the affirmation by Suydam, Sage & Co. of the contrary of such statements. The plaintiffs complain that these representations of Suydam, Sage & Co. were false, that they relied upon such misrepresentations and were deceived by them, and were thereby induced to make the settlement," and on that ground ask to have the settlement set aside.

This action having been commenced in the late Court of Chancery, this court is required, upon appeal, to review the cause upon the facts and the law. (Code, § 460.) Assuming the facts to be as stated, the referee erred in finding as a fact that the plaintiffs had confidence in the representations of Suydam, Sage & Co., and were thereby induced to enter into an agreement for a s’ettlement. Such finding is not only against the weight of evidence, but is against and contrary to evidence. Where a party to whom representations are made has the means at hand of determining their truth or falsehood, and resorts to such means, and after investigation avows his belief that the statements are false, and acts upon such belief by bringing an action to recover money obtained from him by means of the fraudulent representations, he is not entitled to credit when he alleges that upon the reiteration of the truth of the same statements, by the same party, he was induced to enter into an agreement to settle the suit and was thereby defrauded. Such investigation and ascertainment of facts, and belief in the falsity of the representations made, exclude the idea that any reliance could have been placed upon the repetition of the falsehood, and the verdict" of a jury or finding of a referee to the contrary should be set aside as unsustained by the evidence. Indeed, upon such evidence, it would be error to submit, to a jury the question whether reliance was or was not placed upon the reiterated false representations. ' Under the circumstances assumed, the law presumes that the party relied, in making the agreement, upon his own investigation, and not upon the representations of the party with whom he is dealing. This conduct, in acting in opposition to the knowledge acquired by inquiry from one who knows the facts, is attributable, and is set down by the law, to his own indiscretion and recklessness, and not to any fraud or surprise of which, under the circumstances, he has any right to complain. Knowledge that the representations made in relation to the •subject of an agreement, as an inducement to entering into it, are false, will deprive the party having such knowledge, of all title to relief in equity. (1 Story’s Eq. Jur. § 202.) And when a party has been defrauded, and with full knowledge of the fraud settles the matter in relation to which the fraud has been committed, he has no claim to relief at law or in equity on account of such fraud. This was held by the late Chancellor in the case of Parsons, adm’r, v. Hughes, (9 Paige, 591.) In that case the agent of a mercantile firm, to make purchases abroad with the concurrence of his brother, who was a member of the firm, had defrauded his principals by false invoices of. goods purchased for them. The copartnership was subsequently dissolved and mutual releases executed between the partners, which were declared to include a full settlement of accounts between the firm and their said agent. A bill was. subsequently filed by the administrator of one member of the firm to set aside this release, upon the allegation that it and the agreement for dissolution were based upon a fair settlement of accounts between the partners, and that the plaintiff, having subsequently discovered the fraud complained of, was not bound by the release, or precluded from calling upon the partner who connived at the frauds of the agent, to account. To this bill the defendant interposed a plea in bar of the discovery and relief claimed, that before the agreement for a dissolution of the copartnership and a release, all the alleged frauds were well known to the other partners. And that the articles of dissolution and release were executed for the purpose of adjusting and fully settling and compromising all such matters and -frauds. Upon the argument of the case upon the bill of complaint and plea, the Chancellor decided the plea should be allowed; holding that if the allegations of the plea were true, they constituted a full and perfect bar to all discovery and relief. The plea was allowed, with liberty to the plaintiff to take issue upon it. In 2 Parsons on Contracts, 270, the rule is laid down in relation to defenses to actions on the ground of false representations, that it must appear that the injured party not only did in fact rely upon the fraudulent statement, hut had a right to rely upon it, in the full belief of its truth, for otherwise it was his own fault or folly, and he can not ask of the law to relieve him. Many of the cases cited by the author to sustain this rule, hold that if the truth or falsehood of the representations might have been tested by ordinary vigilance and attention, it is the party’s own folly if he neglect to do so, and he is remediless. I think this case is governed by these principles, and that judgment should have been revérsed for error in the referee’s finding as to the fact that the plaintiffs had confidence in the reiteration by Suydam, Sage & Co. of their previous false statements, or were thereby induced to make the settlement.

But if this view of the case is not correct, the referee’s conclusion of law, that the agreement for settlement was void, was clearly erroneous. This agreement, under the allegations in the complaint and the evidence in the case, should be regarded as a compromise or settlement of a doubtful or disputed claim. Ho new false statement is pretended to have been made by Suydam, Sage & Co. to induce the plaintiffs to enter into an agreement for a settlement. Only the old falsehoods were repeated, and Suydam, Sage & Co. reaffirmed their honesty and fair dealing in the matters out of which the suit originated. How it can not be that a settlement effected under the circumstances already stated, comes within the rule which annuls all instruments and agreements procured by fraud. Such an application of the rule would be a virtual prohibition against the compromise of frauds, or of actions for relief on account. of frauds, unless the guilty party should make not only full retribution, but also full confession of his guilt. The law favors the compromise of doubtful and disputed claims, whether they arise ex contractu or ex delicto. Su'ch compromises narrow the field of discord; they put an end to litigation and strife, and promote peace and good will. They are usually effected by mutual concession and compromise. ¡Neither party is compelled to yield more of his claim or defense than he sees fit or deems necessary to accomplish the settlement. If the subject of compromise is a fraud, the party aggrieved may magnify the enormity of it, and the party accused may assert his innocence. Where fraud has been committed by misrepresentation and false statements, and the aggrieved party, with knowledge of the facts constituting the fraud, make a compromise of the matter without suit, or, after suit brought to redress the wrong, compromises such suit, the compromise should be held valid in law, although the party committing the fraud may reiterate such misrepresentations and false statements and affirm and reaffirm his integrity in the matter in order to effect the compromise, and the aggrieved party may thereby be induced to make the compromise.

This case comes within this rule, and the judgment should be reversed.

Selden, J. had been counsel in the cause and did not sit.

Davies, J. was for affirmance, and Marvin, J. was disposed to concur with him.

All the other Judges concurring with Rosekrans, J.

Judgment reversed.


source: Caselaw Access Project

author: Marvin, J.

license: Public Domain

text:
    The People, ex rel. Aspinwall, v. The Supervisors of the County of Richmond.
    A board of supervisors can only audit the damages assessed for the land of an individual taken for a highway, with the charges, &c., as provided in the highway act, (2 R. S. 399, § 93, 5th ed.) and no more can be levied and collected of the town.
    If the supervisors make a false return to a mandamus sued out- by an individual whose land is taken for a highway, and the relator has been kept out of the dama,ges to which he was entitled from the town, the supervisors may be properly made liable in damages, to the extent of the interest upon the damages assessed.
    Where, upon application for a peremptory mandamus, in such a case, the material issues are found in favor of the plaintiff, the judgment should be that a peremptory mandamus issue to the board of supervisors commanding them to audit the claim as commanded in the alternative writ. A direction to the jury to render a verdict for the relator for the amount of the damages assessed, and the interest thereon as damages, is erroneous.
    But on appeal to this court, from such adjudgment, the facts being before the court, it may modify the judgment by reversing it as to the sum assessed as damages, and affirming it as to the interest allowed as damages, and directing that the judgment be so amended as to grant to the relator the writ of mandamus without delay.
    The relator sued out a mandamus requiring the supervisors to audit certain damages assessed for the land of the relator taken for a highway, and to the end that the same should he levied and collected in the town of Southfield, or to show cause, &c. The supervisors answered the writ, denying some of the allegations in it, and alleging some new matters. The relator replied, and the issues were tried at a circuit, and the court directed the jury to render a verdict for the relator for $200, the original claim, and the interest thereon, amounting to $84. ■ To this direction the defendant excepted. The verdict was for $284, for which sum and costs judgment was entered, and it was affirmed at general term. There was no other judgment. Many other exceptions were taken during the trial, which are sufficiently noticed in the following opinion. Upon a previous trial of the case the plaintiff was nonsuited, and upon appeal to this court the judgment was reversed and a new trial awarded. The case is reported in 20 N. Y. Eep. 252.

      John JET. Reynolds, for the plaintiff.

      Amasa, J. Parker, for the defendant.
   Marvin, J.

It will be seen on consulting the case as reported in N. Y. Rep. vol. 20, p. 252, that most of the questions originally raised, and some of which are reviewed, have been disposed of by this court.

The regularity of the proceedings in laying out the highway and in assessing the damages, and the proceedings of the relator to procure the action of the board of supervisors, as then discussed, were affirmed. There was nothing in the case then calling for or justifying any decision or opinion touching the form of the judgment to which the relator was entitled. Can this judgment against the supervisors be sustained? No case in point is cited, but we are referred to the statute, by which, the person' prosecuting the writ of mandamus may demur or plead to the return made to the writ, to which the person making the return shall reply, take issue, or demur, and declaring that “ the like proceeding shall be had therein, for the determination thereof, as might have been had if the person prosecuting such writ had brought his action on the case for a false return.” (2 R. S. 586, § 15.) By the 17th section it is declared, that “in case a verdict shall be found for the person suing such writ, or if judgment be given for him on a demurrer or by default, he shall recover damages and costs in like manner as he might have done in such action oú the case as aforesaid, and a peremptory mandamus shall be granted to him without delay.” It seems to have been supposed that in case the return to the writ was false, the proceedings might be regarded as an action on the case for a false return, and that the relator would he entitled to recover of the defendants as damages the amount he was entitled to receive of the town of Southfield, waiving, I suppose, his right to a peremptory mandamus. Such view would be entirely erroneous. A brief reference to the history of the proceedings by mandamus will enable us the better to under-, derstand the statute. A mandamus is a prerogative writ issuing in the name of the king from the Court of King’s Bench, and directed to any person, corporation or inferior court, &c., requiring them to do some particular thing which appertains to their office and duty. It was introduced to prevent disorder from a failure of justice and defect of police. (Bac. Abr. tit. Mandamus; Jacob’s Law Dict, same title; 3 Black. Com. 110.) The first writ issued is generally alternative, commanding the thing to be done, or that cause to the contrary be shown. This cause might be shown by a return tb the writ, which, if sufficient in law, prevented the issuing of the peremptory writ, and the proceeding came to an end. It is easy to see that while the law remained in this condition the party suing out the writ might be defeated of his rights, by a return to the writ, of facts, good in law, to defeat the' claim, such alleged facts however being untrue. In such a case the party suing out the writ could institute an action on the 'case for a false return, in his. own name, against those making the return, and could recover the. damages he Had sustained by reason of such false return; and thereupon the court, upon a new motion founded upon the postea or judgment in the action for the false return, would grant the writ of mandamus in" a peremptory form. (Jacob’s Law Dict, tit. Mandamus; Bac. Abr. tit. Mandamus, L & M; 3 Black. Com. Ill, 264, 265.)

In this state of the law the statute of 9 th Anne, ch. 20, was enacted, authorizing pleadings by the parties subsequent to the return, and a trial of the "issues, and declaring that the same proceedings may be had as if an action on the case Had been brought for making a false return, and that damages and costs might he recovered, and declaring that a peremptory writ of mandamus shall be granted without delay, as might have been if the return had been adjudged insufficient. (Bac. Abr. tit. Mandamus, H.) The statute of Anne related' to officers, and some subsequent statutes extended its provisions to other cases. The provisions of our own statute are taken from these statutes, and seem to include all cases. But it does not follow that the relator will be entitled to damages, other than nominal, against the defendant in all cases. Under the statute of Anne and our statute he is to have, upon recovering judgment, a peremptory mandamus granted to him without delay. If it is a proper case for damages to be recovered of those against whom the writ is prosecuted, then he may recover such damages in addition to his judgment for the peremptory mandamus, without resorting to his action for a false return. In the case of an expulsion from office, or the refusal to induct into an office, actual damages may have been sustained by reason of the loss of the emoluments of the office during the time of the deprivation. But in a case where the writ itself is a complete remedy, and gives to the party all he is entitled to, how can it be said that he is entitled to other damages against the defendants ? It is to be kept in mind that the peremptory writ is to be granted to him without delay. In this case, the material issues being found in favor of the plaintiff, the judgment should' have been that a peremptory mandamus issue to the board of supervisors commanding them to audit the account as commanded in the alternative writ. And I see no ground for any damages, other than nominal, against the defendants, provided the board of supervisors can be required to include in the damages, assessed at $200, the interest thereon from the time when the claim was presented and should have been audited. If this can not be done, as against the town of Southfield, then I am inclined to think the defendants may be liable for such interest by way of damages, assuming that they make a false return to the writ.

The exception to the admission of the copy of the town records of elections in 1846 was not well taken. The evidence of the loss of the original record was quite sufficient to justify "the admission of secondary evidence. ' Some other objections and exceptions appear. in the case. They were also in the case, substantially as they now appear, when the case was heretofore in this court, and were then disposed of. It is, however, now made a point that the judge erred in not. submitting the issues joined upon questions of fact to the jury. I think the evidence made a case substantially for the court. There was no dispute touching the material and controlling facts, and besides, it does not appear that any request was made that any question of fact sho.uld be submitted to the jury. ’ As has already appeared, the direction to the jury to render a verdict for the relator for $200 and the interest as damages was erroneous, and the judgment is erroneous and must he reversed," unless this court can amend the record and direct or render the proper judgment. This court may reverse, affirm or modify the judgment appealed from, in whole or in part. (Code, § 12.) Why may it not reverse that judgment as to the damages, and direct the proper judgment, viz. that a mandamus issue, and that the relator recover costs and six cents or the $84 damages ? Will not this be a reversal.of the judgment in part, and a ihodification of it ? If this can be done, it ought to be without costs to either party. If such judgment can not be rendered, then the judgment must be reversed and there must be a new trial, unless the defendants will consent that the proper judgment as here indicated should be • entered, without costs of this appeal to either party. If they so consent, then such judgment should stand as affirmed by this court.

The court, upon consultation, is of the opinion that the supervisors could only audit the damages assessed, with the charges &c. as provided in the highway act, (see 2 E. S. 399) § 93, 5th ed.;) and that no more could be levied and collected of tlie town, (§ 94.) That 'as the return of the supervisors was false, and the relator has been kept out of the damages to which he was entitled from. the town, the supervisors may be properly made liable in damages to the extent of the interest upon the $200, to wit, $84. Also, that all the facts are before the court, enabling it ■ to modify the judgment by reversing as to the $200 damages, and affirming it as to the interest as damages, and directing that the judgment be so amended as to grant to the relator the writ of mandamus without delay. Neither party to have costs of this appeal.

All the Judges concurring,

Ordered accordingly.


author: Allen, J.

text:
    Wilson v. Elwood and Miller.

    In an action for a tort, tried in 1854, each defendant was, under the provisions of the code then in force, a competent witness for his co-defendant, as to any matter in which he was not jointly interested with or liable with such co-defendant, and as to which a separate and not a joint verdict or judgment could be rendered.
    Accordingly held, that in an action of trover, against E. and M., where the defendants answered jointly, denying each and every allegation of the complaint, and justifying under a title in E. by virtue of a mortgage from M., the latter was a competent witness for E. upon the question Whether E. was guilty of any act in respect to the property in controversy, which would charge him as a tort-feasor; they not being equally interested in that question.

      Sold, also, that a general offer by the counsel who appeared for both defendants “ to call M. as a witness,” was not to be deemed an offer made in behalf of both defendants, but as an offer to examine him as to matters in which E. was alone interested.
    This action originated in a justice’s court, and was tried" in 1854. It was trover, for a quantity of hay. The defendants answered jointly, denying each and every allegation of the complaint, and also justifying under a title in Elwood, under a mortgage from the other defendant, Miller. The plaintiff proved the purchase of the hay on an execution, in his own favor, issued from a court "of a justice "of the peace, against the defendant Miller. The defendants proved the mortgage given and filed before the levy on the plaintiff’s execution, and gave evidence of the consideration. Evidence was given of the separate acts of the defendants tending to prove an interference with, and a conversion of, the property by them. The return of the justice states: “The defendants’ counsel here offered to call the defendant Miller as a witness. Objected to by the plaintiff,- as both defendants were equally guilty of the conversion; objection sustained.” In an amended return it is stated that the defendants’ counsel immediately moved for a warrant as to Miller, so that he might be a witness in the case, which motion was denied, and that the offer of Miller as a witness was urged. The justice gave judgment for the plaintiff, which was reversed by the County Court of Delaware county, and upon appeal to the Supreme Court the latter judgment was reversed and that of the justice affirmed by the court, sitting in the 6th district. The defendants, by leave of the Supreme Court, pursuant to statutej appealed to this court. The cause was submitted upon printed briefs, &c.

      B. R. Johnson, for the appellants.

      H. F. Davidson, for the respondent.

       Decided at September term, 1862.

   Allen, J.

The only question is upon the exclusion of the 'defendant Miller as a witness. By the general denial of the allegations of the complaint, every fact necessary to maintain the action was put in issue by each defendant. The conversion of the property by each defendant, as well as the title of the plaintiff, was to be, proved, and upon failure to connect either with the taking or conversion, the action necessarily failed as to the defendant against whom there was no sufficient evidence. The cause of action was several as well as joint, and one might have been acquitted and the other convicted. At the time of the trial (1854) a party might be examined^ in behalf of his co-plaintiff, or of a co-defendant, as to any matter in which he was not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment could be rendered. (Code, § 397, as amended in 1852.)

In actions of tort each defendant, under this provision, was a competent witness for his co-defendant. In such case the witness was sworn generally in the cause, and the examination restricted to such matters as concerned only the party in whose behalf he was called, and in which the party under examination was not interested. (Beal v. Finch, 1 Kern. 128; Dean v. Thornton, 3 id. 266.) Upon the question whether Elwood Was guilty of any act in respect to the property in controversy,, which would charge him as a tortfeasor, his co-defendant Miller was clearly competent as a witness; for in that question they were not equally interested. Both were interested equally in the validity of the mortgage and the value of the property as the measure of damages, but neither was interested with the other on the question of his guilt or innocence of the tort complained of.

' But the form of the offer was criticised in the' Supreme Court,- and upon that criticism the judgment of the County Court was reversed. There was certainly no very strong equity in the plaintiff’s case, calling for the enforcement of any stringent rules of construction in his behalf, in furtherance of justice. In satisfaction of a judgment for less than twenty dollars he had recovered a judgment for seventy dollars against another, also claiming as a creditor to a much larger amount, and upon a security good in form and not very suspicious in character, although upon the question of fraud the judgment of the justice is conclusive here. But in reviewing proceedings before justices of the peace it is the province of the court to give them, and all the acts of the parties upon the trial, a fair and reasonable construction, such as it may be supposed was intended by the parties or understood by the court, and so as to save and not destroy the rights of parties. We are not to look for the same precision, either in offers of or objections to evidence, nor the same care in noting them that we may expect upon trials in a court of record or on a formal bill of exceptions. Brown v. Richardson, (20 N. Y. Rep. 472.) was tried in the Superior Court of the city of Mew York. The assignee of the demand in suit had been called and examined as a witness for the plaintiff, which entitled the defendant, as the law then stood, “to offer himself as a witness to the same matter in his own behalf,” and to be so received. (Code, § 399, as amended in 1851.) The defendant offered himself “generally as a witness in his own behalf,” as is stated in the bill of exceptions, and was, upon objection by the plaintiff, excluded. The same objection to the offer was urged upon the appeal, in support of the judgment, that is urged here, to. wit, that it was too general; that the defendant was not a witness generally in the cause and should not have been so offered, and as the offer as made was erroneous the judgment should be affirmed. But this court repudiated that claim, and unanimously reversed the judgment. The argument of Judge Selden, by whom the opinion of the court was delivered, is entirely appropriate to this case, and the application of the same principles and rules of interpretation to the case in hand, would lead to a reversal of ‘the judgment of the Supreme Court and an affirmance of that of the County Court. The counsel for the defendants made the offer. Both appeared by the same counsel, and it is not necessarily to be supposed that the offer was made in behalf of both defendants. As the law then stood a defendant could not be a witness in his own behalf, but could as to certain matters in behalf of his co-defendant. The action was one in which the offered witness was competent for his co-defendant, and in the language of Judge Selden, “it is hardly probable therefore” that the offer could have been in behalf of both defendants. He was entitled to be sworn, and the question upon the restriction of his testimony would properly arise upon his examination. The exclusion of the witness can only be justified by showing that the defendants expressly claimed that the witness should be sworn and examined on his own behalf, as well as on behalf of his co-defendant, and without restriction or limit as to the subject matter of, .his examination; waiving the right to examine him in favor of his co-defendant and upon the matters authorized by statute. This does not appear; but on the contrary the whole return "shows that the offer was in truth, and understood by the plaintiff and by the justice, to be an offer to examine him as to matters in which the defendant Elwood was alone interested. The objection of the plaintiff, which was sustained by the court, was that “both defendants were equally guilty of the conversion;” that is, that there was no matter or question involved in which the offered witness was not equally interested with his co-defendant, in whose behalf he was offered. The evident understanding of all concerned was that he was offered on behalf of his co-defendant, and hence the allegation, sustained by the decision of the court, that they were found to be joint actors in the conversion, and that therefore one could not be called to-exculpate the other, which is directly in conflict with Beal v. Finch and Dean v. Thornton. Immediately upon the exclusion of the witness an attempt was made to procure the discharge of Miller, so that he c&uld then be sworn and examined for Elwood. The offer of Miller as a witness being persisted in, all showing conclusively that the offer was made and understood to be, made under the 397th section of the-code. The witness was not excluded because offered for both defendants, and the judgment ought not to be sustained upon that ground, which evidently did not occur to the parties, to the justice or the County Court. It would be grossly unjust to deprive the party of his rights which were brought to the attention of the court with greater distinctness and more formality than is usual in a justice’s court, and certainly with all the precision which was held sufficient in a court of record, by this court in Brown v. Richardson, upon the very strict and critical interpretation put upon the language of the return by the Supreme Court. The judgment of the Supreme Court should be reversed and that of the county court affirmed.

Denio, Ch. J., Selden, G-ottld and Sutherland, Justices, concurring,

Ordered accordingly.


author: Wright, J. Emott, J.

text:
    Dows and others v. Congdon and others.
    An.cider of the Supreme Court, setting aside a sale of mortgaged premises, atld directing a reference, to ascertain when two of the defendants in the foreclosure suit entered on the premises, and under what' agreements, or title, respectively; also the value of the premises occupied hy those defendants respectively at the time they took possession of the same; and what the relative value of such parties respectively, independént of the improvements made hy such defendants, is, with reference to the value of the rest, and of the whole of the mortgaged premises; and the cost or value of such improvements respectively was; and reserving to either party, on filing the report of the referee, the right to move for its confirmation', and for an order determining the payments to he made by the two defendants named, respectively, is not appealable to this coilrt.-
    Appeal from an order of the Supreme Court, affirming an order of the special term for a resale of mortgaged premises, and directing a reference to ascertain the value of the land without the improvements, in the possession and use of the defendants Gongdon, Mail’s and Potter, owners of the Canandaigua and Niagara Falls Bail Boad, and of the Buffalo, New York and Erie Rail Road Company, successors of the Buffalo, Corning and New York Rail Road Company.

      G. F. GomstocTc, for the appellants, Dows and Hairs.

      F. F. Cornwall, for Thomas Brown (purchaser) and The Buffalo, New York and Erie Rail Road Company.

      G. N. Potter, for the respondents, Congdon, Brown and Potter.
   Wright, J.

There is a preliminary question, viz. whether an appeal lies to this court from the order. Our jurisdiction to review orders is limited to three classes: 1st. When an order affecting a substantial right is made in an action, and in effect determines the action and prevents a judgment from, which an appeal may be taken; 2d. When the order grants or refuses a new trial; 3d. A final order, affecting a substantial right, made in a special proceeding or upon a summary application, in an action, after judgment. (Code, § 11.) The order which the appellants seek to review sets aside a sale of mortgaged premises, and directs a reference to ascertain when the Canandaigua and Niagara Falls Rail Road Company, and the Buffalo, Corning and New York Rail Road Company, two of the defendants in the foreclosure , suit entered on the mortgaged premises, and under what agreements or title respectively; also the value of the premises occupied by the rail roads respectively at the time they took possession of the same, and what the relative value of such parties respectively, independent and free of -the improvements put by the owners of such rail roads, and with reference to the value of the rest of, and of the whole of the mortgaged premises, and what .the costs and value of such improvements respectively were. Either party, on filing the report of the referee, might move for its confirmation and for an order determining the payments to be made by the rail road owners respectively.

I regard the order as not appealable. It does not fall within the first class. It neither,- in effect, determines the action in which it was made, nor presents a judgment from which an appeal might be taken. It is substantially an order directing a resale of mortgaged premises on the ground of mistake and surprise. The granting of such an order, when it involves ño question of strict legal right, is within the discretionary powers of the court below, and not appeal-able. Nor does it fall within the third class. It is not a final order. A reference is directed to ascertain the' proper order of the sale and the value of the lands. It determines no amount, nor even the nature of the amount to be paid. All questions growing out of the reference are reserved until the coming in of the referee’s report, when an order is to be made. From that order, when made, the plaintiffs, and the Buffalo, New York and Erie Bail Boad Company, which seems to have been acting at the sale with the view of screening itself from liability, may doubtless appeal. But this appeal is premature.

The appeal should be dismissed.

Denio, Davies, Bosekrans, Marvin and Balcom, Js. concurred.

Selden, J. having been counsel in the cause, took no part.

Emott, J.

(dissenting.) This is an appeal from an order made at a general term, affirming a previous ordér of the special term, setting aside a sale under a judgment of foreclosure. It is insisted that such an order is not the subject of appeal to this court. There are cases in this court, and one of them quite recent, (Hazleton v. Wakeman, 3 How. Pr. R. 357; Wakeman v. Price, 3 Comst. 334; Buffalo Savings Bank v. Newton, 23 N. Y. Rep. 160,) which at a first glance would lead to such a conclusion. But while I have no disposition to deny that these cases were correctly disposed of, or at least that in each of them the adjudication appealed, from was not the subject of review upon its merits, it will he seen upon a scrutiny that the rule which I have stated as to the non-appealability of such order was not necessary to their decision, and such a rule will be too sweeping in its consequences to he adopted without great consideration.

The language of the code, in respect to appeals to this court and to the general term of the Supreme Court, from this class of orders, is identical. (Codé, §§ 11, 349.) An appeal lies to either court from an order made upon a summary application in an action, after judgment, and which affects a substantial right. If, therefore, an order vacating or refusing to vacate a sale under a judgment or decrée is not appealable to this court, it would not seem to be the subject of review by the Supreme Court.

In all the cases reported in this court, it is admitted that an order setting aside or refusing to set aside a foreclosure sale affects a substantial right, but it has been said that the relief asked upon such a motion is strictly a matter of favor, and wdthin the absolute discretion of- the court. Judge Pratt said in Wakeman v. Price, (3 Comst. 334,) that granting or denying such a motion was as clearly a matter of practice as an order granting or denying a motion to open a default, or to allow costs. Judge Dentó said in The Buffalo Savings Bank v. Newton, (23 1ST. T. Eep. 162,) that granting such an order was a' matter of favor, resting in the discretion of the court.

The facts in these' cases perhaps justified the remark in reference to them. In Wakeman v. Price the principal and only ground stated in the report of the case was inadequacy of price. In the Buffalo, Savings Bank case the reason given for the motion was that one party interested in an equity of redemption had forgotten the day of the sale, and inadvertently became in default. It may very well be that an' appellate court will not and ought not to review such an exercise of mere discretion as these cases involve. But orders granting or refusing applications to vacate sales in foreclosure or otherwise, do not always address themselves, like motions to open defaults, to the mere favor of the court. ,Such was. not the case in the present instance. Such is not the case where questions of fraud arise, or of the order of sale of different parcels of the mortgaged property. With due respect to the language of the eminent judges in the cases to which I have referred, I think it would be more proper to say in those, and in many "such cases, that an exercise of discretion, such as orders made upon such grounds involves, would not • be reviewed in this court, than to make the sweeping propo-. sition that no appeal will lie from this class of orders.

In Wakeman v. Price, Judge Pratt declared his intention to. adhere to the rule adopted by the late court of errors in regard to this class of appeals; referring to Rowley v. Van Benthuysen, (16 Wend. 372;) Rogers v. Holly, (18 id. 350.) I agree with him that the rule recognized by those and other cases in the court of errors is the rule intended to be adopted by the code, and I think it is expressed with' tolerable clearness in that statute'. Rogers v. Holly, (18 Wend. 350,) was an appeal from an order of the Chancellor upon a question of discretionary costs. Rowley v. Van Bentlmysen, (16 Wend. 372,) was an appeal from an order refusing to open a default. Neither of these appeals was sustained. On the other hand, in Collier v. Whipple, (13 Wend. 224,) the court of errors entertained an appeal from an order granting a resale in a foreclosure case, and heard an elaborate argument on the merits. In Tripp v. Cook, (26 Wend. 143,) there was an appeal from an order refusing to set aside a sale. The objection was taken that such an order was not the subject of,appeal, and was fully argued. The objection was overruled, Senator Verplanck delivering an opinion marked-by both learning and good sense, and the appeal was subsequently heard and decided upon the merits. • The principle established by these cases is, ' as stated by Senator Verplaece: in Tripp v. Cook, that the appellate court will not undertake to regulate the practice of the court below, or to entertain appeals on decisions merely regulating their modes of proceeding, and within the judicial discretion of the courts, not to be resolved into any general legal or equitable principles, nor passing on the merits of the controversy. He adds that the principle refers solely to the practice of the courts, and to questions of pure and unmixed judicial discretion. And he proceeds to indicate the distinction between a discretion which is arbitrary and absolute, and subject to no rules, and that discretion which is to be exercised according to law, and must be subject to review. Judge Sutherland has discussed the same subject, and defined these sorts of discretion as clearly as the nature of the case admits, in The People v. The N. Y. Superior Court, (5 Wend. 125.) The distinction between that discretion which is and that which is not the subject of review is often shadowy, and difficult to apply in practice, but it may be seen by comparing the action of a court in opening a default, on the one hand, and on the other, in vacating an injunction o't in setting aside a judicial sale for fraud or misconduct of an officer or a party. The former is a mere exercise of judgment and volition, necessarily arbitrary and governed by no fixed rule. The latter involves fixed principles of equity, which have been as long recognized and as thoroughly discussed as any head of equity jurisprudence. This is the distinction which the legislature intended to preserve, in regulating in the code the jurisdiction of appellate courts in such cases. Unless an order affects a substantial right it is not appealable, either to the general term of the Supreme Court or to this cpurt. By an order affecting a substantial right is meant not a decision which may ultimately or consequentially affect such a right; for hardly any order can be made in the progress of a suit that could not be said to have some bearing upon the ultimate rights- of the parties. 'In such a sense, an order refusing to open a default might be said to affect the merits or the substantial right of the party; since its effect might he to prevent him from interposing a valid defense. But what the legislature .intended was an order granting or refusing that to which the party had a right, and which was substantial, in his cause or his interest. Neither a matter of practice nor an application addressed to mere favor, or to the pure and unmixed discretion of the court, is a substantial right of the party. If it'be matter of practice it is not substantial; and if it be simply a favor, which it is altogether a mere discretion of the court to grant or refuse, it is not a right. But it is otherwise with an application as to which a party can say: I ask that the-court redress an injury which I have sustained, and where I can cite known precedents and settled principles' to show both the wrong and the remedy. The learned judge who delivered the opinion in the Buffalo Savings Bank case observes of the order under consideration there, that in one sense it affected a substantial right. With, .great respect I must observe, that when this is true in any proper sense, it has always seemed to me that there was an end of the question of appealability. When an order, in other respects appealable, really and directly affects a substantial right of the party appealing, the mandate of the statute is clear to this court, and to all other appellate tribunals, that they shall review the decision of the inferior court. We are as much commanded to entertain appeals in such cases as we are forbid-. den to hear them in cases where no such right is touched.

.There may be orders vacating or refusing to vacate judicial sales, which are mere arbitrary acts of judicial favor or discretion, but all orders affecting such sales are certainly not of that character, and I therefore hold to a qualification of the doctrine apparently announced by the cases in this court to which I have referred. In the present case, for instance, if the court below were justified in setting aside this sale in the manner and for the reason disclosed in these papers, they were bound to do it. The respondents had a right to invoke the equitable principles upon which the court acted, or the purchaser had a right tq retain his bid. No court could arbitrarily say that they would decide between them according to mere will and unmixed discretion. Nor could any decision be made of' such a question as is here presented which is not the subject of review.

I proceed to examine the merits of this appeal. I shall not consider whether the respondents were misled as to the sale, or prevented from protecting their rights either accidentally or intentionally. Although the judge who granted the motions at special term intimated that there was sufficient cause shown for granting relief on these grounds, he declined to place his decision upon them, or to make such an order as would be appropriate to such a state of facts. (See 16 How. Pr. R. 576, where.the case at special term is reported.)

The order rests upon two alleged violations of the respondent’s rights: first, in the order of the sale, and second, in the subject of the sale. A certain portion of the mortgaged premises is owned by two rail roads, the Buffalo, New York and Erie E. E., and .the Canandaigua and Niagara Falls E. E. The judgment directed a sale of the parcel in bulk, without noticing the titles or possessions of those rail roads, respectively. There is no dispute that the title or right, legal or equitable of both the roads, was subsequent to the plaintiffs’ mortgages. These were dated in 1851, and in January, 1852. There is some difference as to the precise time when the rail road companies entered upon the portions of the premises which they occupied. The weight of the evidence furnished upon this point, however, is strongly in favor of the Buffalo, New York and Erie company, or rather the Buffalo and Corning E. E. Company, to which they succeeded, as having first entered and commenced to construct their road. Afterwards the Canandaigua road was constructed across the mortgaged premises. Neither of the rail road companies took legal proceedings to acquire title. In May, 1852, the Buffalo and Corning E. E. Company took a deed from the mortgagors, of the land owned by them, and the Buffalo, New York ^nd Erie company have acquired their title and succeeded to their rights as I have stated. The Canandaigua and Niagara Falls company have never received any deed, but they entered and continued to occupy under a verbal agreement with the mortgagors for title, or the appropriation of what they required. The Buffalo, New York and Erie company werp represented at the sale, and at their demand the residue of the premises was sold before that belonging to them, on the ground that they were the first alienees. The part of the premises which had not been sold, nor occupied by any other person than the mortgagors, was first sold, and then what was in possession of the Canandaigua company. The result- was that enough was realised from these sales to satisfy the mortgage, and the parcel which had been conveyed to the Buffalo, New York and Erie R. R. Co. was not -sold at all. Assuming the facts to be as. claimed by this latter company, and as believed to be by the referee, and as the weight of the evidence clearly was upen this action, the order of sale was right. The equitable title of the latter company, by their contract and possession, was prior to the similar title acquired by the Canandaigua B. B., and there is nothing in the suggestion. that this privity was lost by completing the purchase, and merging the equitable in a legal title under an drdinary con-' veyance to the Buffalo rail road. It would be very extraordinary if the mere equitable title of the respondents, posterior in date to a similar right of the Buffalo company, should obtain priority and be regarded as a prior alienation, because they neglected or were unable to complete their purchase, while their predecessors carried out their contract and took their deed, while continuing in possession. The order of safe adopted by the referee, as between these two parcels and their owners or possessors, was manifestly right, and the order appealed from can not' be justified by the order of alienation of the property. The order, indeed, could not be sustained for any such reason, in any view of the case. In the first place, it does not assume or declare that the respond-eats’ parcel was in fact first aliened and .therefore to be last sold, but while setting aside the sale which had been made, the order directs an inquiry as to the order of alienation of the two parcels occupied by the two rail roads. Besides, the order does not direct a resale in the proper order either as assumed by the court or as if will be ascertained by the referee, but it exempts the parcels owned or occupied by these rail roads from sale and the lien of the plaintiff's mortgages altogether, upon their contributing, to the satisfaction of the mortgages, each an amount equal to the original value of the land taken by them antecedent to their improvements.

The decision of the Supreme Court was undoubtedly based upon the idea that the plaintiffs had subjected to the lien, of their mortgages and sold what they had no right to. In other words, that the structures or improvements of the rail roads were not subject to the lien of these mortgages, and .that of the property taken and occupied by the rail roads only the original value of the'land previous to the erection of the structures of the respondents, could be appropriated to sat- ' isfy the plaintiff’s judgment. This, however, was riot the meaning nor the language of the judgment itself, for that contained no such exception, and it was accordingly a part of the order that the judgment should be modified, although the Buffalo rail road had not answered, nor claimed any such right, and the Oanaridaigua road which had answered, setting up a different defense, had failed to appear at the trial.

This theory of the rights of the respondents can not be supported upon the ordinary doctrine of the equitable rights of a purchaser to improvements against a vendor; for the obvious reason that the question here is not between vendor and purchaser. Whatever equities the respondents might have against the mortgagors from whom they purchased, these’ equities would not affect a prior mortgage of which they had notice by the record, .and whose holders were not privy to the contract with the mortgagors. It is not necessary to consider what the extent of a purchaser’s equity. against a vendor, to protection or compensation for improvements in certain cases, may be. It is sufficient that it has never been supposed nor can it be shown to bind a prior mortgagee who is neither .party nor privy to the contract. Improvements or expenditures made under such circumstances are not bona fide, because the record of the mortgage is notice to the purchaser, and he acts at his peril. There are cases where a mortgagee in possession, and supposing himself to have" a legal as well as an equitable title, has made permanent improvements, with the knowledge and implied assent of the mortgagor. Thus the mortgagor coming to •redeem has been compelled to pay not only the mortgage debt as entered, but the value of such improvements. (See Benedict v. Gilman, 4 Paige, 62; Mickles v. Dillaye, 17 N. Y. R. 82.) But these cases lend no support to a claim to subject a mortgagee upon foreclosure to the cost of improvements made by a purchaser from the mortgagor with notice of the mortgage.

It remains to consider what effect the power conferred by statute upon the respondents, to take the property for public use, has upon the present grantees. It is not denied that the respondents, at the time of their entry, could have instituted proceeding's and confiscated the property as it then was to their use, for the public. These proceedings, if properly conducted, would have deprived both the mortgagor of his equity of redemption, and the mortgagees of their lien or mortgage title, upon making due compensation to both, estimated by the value of the .property in its then condition. But they did not take this course. They entered under a contract with the mortgagor, and of course subject to the rights of the mortgagees, whose title indeed they could have at any time acquired and extinguished, as they still can. But between the respondents and the mortgagees there is no contract. Conceding that the respondents have a right to an appraisement of damages with a view to the extinguishment of their right and title, or that of the purchaser under their mortgage, which I have no doubt they had, yet I am unable to see where or how the Supreme Court, exercising its equitable-jurisdiction upon motion after a judgment and sale on foreclosure, obtains power to ascertain this compensation and perfect the respondents’ title. The rights of the respondents do not, as I have said, grow out of contract. They are vested by statute with the right of eminent domain belonging to the state. This right is limited by the constitution, and must be exercised' according- to its provisions. The respondents have the right to take for public use whatever title the purchaser at the sale has obtained, making him due compensation, to be ascertained by a jury, or by commissioners in the mode pointed out by the constitution. This is the relation of the parties to each .other, and the whole of it. There are no equities growing out of such relation,-which would authorize a court to compel a release or conveyance by the mortgagee upon receiving such compensation as the court should determine. A suit in duó form, as for a specific performance, could not be entertained for such a purpose, and still less can such relief be given on motion.

The sale in this case was regular, and was authorized by a judgment to which the respondents were parties. What rights the purchaser acquired under such a sale, considering the power vested in the respondents and their relation to the property, are questions which we are not called upon to determine.' The purchaser does not complain, nor ask to be relieved. If he had, and had shown misleading or mistake, a totally different element would have been introduced. But the purchaser is willing to take the risk of his purchase, -an.d to complete it, leaving the respondents to acquire his title by subsequent proceedings according to the statute, making him whatever compensation the law awards him. Whether this will be the present value of his purchase, or its original value without the improvements and expenditures of the respondents, is a question of which he takes the risk, but which we can not in this proceeding decide.

The result of this reasoning is, that the Supreme Court exceeded their authority in the order appealed from, and that it was erroneous on the merits.

After this opinion had been prepared) a point was suggested in consultation, that this' order is not final, in consequence of its directing a reference to ascertain the order of alienation of the two .parcels of real estate to which I have referred. Four of the judges entertained this opinion, and upon consideration, while adhering to the views already expressed upon the appealable character of such an order, if it had contained no provision for#a reference or any subsequent proceedings, I am willing to concur in their opinion, although with some hesitation. This will lead to a dismissal of the appeal.

Appeal dismissed.


author: Selden, J. Balcom, J.

text:
    Murphy v. The Commissioners of Emigration.
    The commissioners of emigration not being engaged, or interested in, the transportation of passengers or baggage, .or in the care of baggage .after it is landed, and having no agents who are so engaged, are not responsible for the loss of' baggage delivered by an emigrant, on board a ship in the harbor of New York, to the crew of a tug boat, to be transported'to Castle Garden.
    The licensing of the owners or captains ‘of steamboats &c. to receive and land passengers and their baggage, and of persons to solicit emigrant passengers, and baggage, for boarding houses and transportation lines, by the commissioners of emigration, does not make the licensed persons the agents of the commissioners, or render the latter responsible for their good con- • duct.
    This action was brought in the Court of Common Pleas of the city of Hew York, to recover the value of a trunk and its contents, which it was claimed were delivered to the defendants, on ship board in the harbor of New York, on the plaintiff’s arrival at that port, in the ship Ontario; which trunk the defendants undertook to forward to their place of" business at Castle Garden; and it is alleged that the trunk and its contents, of the value of $1290, were lost by the defendants, and judgment demanded for that sum.
    The defendants denied that they received the box or its contents, and alleged that they were public officers of the state of New York, whose powers and duties were defined by statute, and they denied that they had any other powers, or that emigrants were landed at Castle Garden,- or baggage taken or deposited there, by the defendants, or by any one by their authority, or on their behalf; or that they employed agents or servants to do so.
    It appeared on the trial, that the plaintiff, in August, 1857, came as a passenger on the ship Ontario to New York, and brought- three boxes or trunks, containing baggage; that a tug boat came alongside of the ^hip in the harbor, and persons on board put strap checks on the trunks, gave the plaintiff the checks, and the trunks were put on board the tug boat, and taken to Castle Garden. The plaintiff subsequently obtained two of her trunks, but the other was missing, and could not be found. At one time when she called to make inquiries concerning it, Mr. Kennedy, one of the commissioners of emigration, was there, and hé took the check and refused to return it to her, and put her out of the garden.
    The commissioners of emigration, composing a board of ten persons, was organized in 1847, to provide for the support and maintenance of indigent emigrants. By subsequent statutes they were authorized to designate a place in the city of New York where emigrants should be landed; to purchase, lease, construct and occupy 'wharves, piers and other accommodations, in the city of New York, for that purpose; to license the owners or captains of steamboats and other craft; to receive and land passengers and their baggage; and to revoke such licenses; and such persons were prohibited from acting without such licenses. Like power was given to them to license persons to solicit emigrant passengers and baggage, for boarding houses and transportation lines, &c. and the law required all personal baggage of emigrants to be landed at the place designated by them. In pursuance of these powers, the defendants designated Castle Garden as the place for the landing of emigrant passengers and their baggage; and procured an assignment of a lease of the place, to themselves, subject to a reservation by the assignor, of the right to rent such parts of the same as should be required for offices for the sale of tickets, and contracting for the transportation of emigrants and baggage. They also licensed various steamboat captains and solicitors for boarding houses and transportation lines, and retained the control of the garden, the regulation of its police, &c., but they were not engaged or interested in the transportation of passengers or baggage, and had no agents who were so engaged.
    On this state of facts, a motion for a nonsuit was denied, and the defendants’ counsel excepted. The judge then charged the jury that the doctrine of respondeat superior was applicable to this case, and that the defendants were the superiors or principals; to which the defendants’ counsel excepted.
    The jury found a verdict for the plaintiff for $1288.73, for which ’sum judgment was entered, with costs, after the denial at special term of a motion for a new trial.
    On appeal to the court at general term, the judgment was reversed, and a new trial ordered, on payment of costs to the appellants; and from that order the plaintiff brought the present appeal, stipulating for final judgment, in case the order shall be affirmed.

      John S. Reynolds, for the appellant.
    I. By their verdict the jury have found that the property of the plaintiff came into the possession of the agents or employees of the commissioners of emigration, and that it was los't by their carelessness or negligence. Under this finding of the fact, the liability of the defendants is clear, unless there is some special exemption from liability, applicable to them. 1. There is no statute exempting the commissioners of emigration from liability for their own wrongful or negligent acts, or those of their agents or servants. They may be under no duty to look after the baggage of emigrants, but if they do undertake it they must perform the duty with fidelity, and if they do not-they are liable. 2. The case clearly shows that the immediate agents of the defendants took charge of the plaintiff’s property, and through them it was lost. Hr. Kennedy in fact converted it by retaining the check, and driving the plaintiff away from Castle Garden, and he was a commissioner of emigration and then general superintendent.
    II. By the act of 1855, (chapter 474, §§ 6, 7,) the commissioners of emigration are authorized to designate the place in the city of Kew York for the landing of emigrants, and also may purchase, lease, construct and occupy such wharves, piers and other accommodations in the city of Kew York as may be necessary for the accommodation of emigrant passengers. 1.,-It will be seen by an examination of this statute that the duties to be performed with respect to emigrants is confided to the commissioners of emigration. They are to occupy the wharves and piers for that purpose, and it does not appear that they are authorized to surrender these duties to the employees and runners of rail road companies, and thus throw off all responsibilities for the performance of the trust imposed. 2. In pursuance of the statute" of 1855, the commissioners of emigration designated Castle Garden as the place for landing emigrants, and took an assignment of a lease of the premises for that purpose,-and it does not alter the question of their liability that they have given for convenience, or otherwise, pertain privileges to various rail road companies. Public officers, who are charged with ancbaccept public duties in the performance of which individual rights may be' affected, are not excused from lia» bility if individuals suffer, because they have, improperly delegated to others, duties which they ought themselves to have properly performed. 3. The case shows that all the operations at Castle Garden are under the direction of the commissioners of emigration. Ho agent of a rail road company is there, except by their consent, and by their authority, and all is controlled by their immediate agent and superintendent, and in this case their general agent assumed to give special directions in respect to the baggage lost. 4. If the baggage was lost through the intervention of the rail road agents, it does not change the rule of liability, for these agents are put there by the defendants to discharge their duties. But in fact the agents of the rail road companies had nothing to do with the plaintiff’s property. They dealt with the baggage of emigrants going out of the city, and not those intending to remain in Hew York as the plaintiff did. Hence two classes of checks were used, and the plaintiff had Castle Garden” checks, which place was governed and controlled by the defendants or their immediate agents, and who in fact assumed dominion over it. 5. But as the defendants are by law charged with thfe duty of protecting emigrants, they could not, by any act of theirs, create in the rail road companies or their agents a duty, which is so far separate and independent as to shield the defendants from liability to third persons for their misconduct, no matter what claims may arise between the defendants and their employees. And in fact the whole case shows that tijp defendants have reserved to themselves the full dominion and control of Castle Garden and all persons employed in the landing and protecT tion of emigrants.
    III. Although the defendants are public officers and .charged with duties which may be considered public in their character, they are nevertheless ministerial and not judicial duties, and they are liable for any nonfeasance or misfeas

      anee in the line of their duties by which injury happens tc individuals. (Rochester White Lead Co. v. City of Rochester, 3 Comst. 464; Houghton v. Swarthout, 1 Denio, 589; Wilson v. Mayor &c., Id. 595; Mayor &c. v. Furze, 3 Hill, 612.) 1. The court ruled correctly on the trial that the doctrine of respondeat superior applied, and that the defendants as superiors or principals are responsible for the wrongful and negligent acts of their servants. (Blake v. Ferris, 1 Seld. 48; Peck v. The Mayor, 4 id. 222; Stevens v. Armstrong, 2 id. 435; Story on Agency, § 453.) 2. Under the statutes relating to the landing and protection of emigrants, the commissioners of emigration are made the superiors or principals in respect to all that pertains to the performance of the duties imposed, and they can not divest themselves of that relation or responsibility. (Ch. 195, Laws of 1847, § 4; Ch. 474, Laws of 1855, §§ 6, 7.) 3. The object of the provisions of the statute was to prevent emigrants arriving at Hew York from being robbed of their money arid property, and it is absurd to say that while they have a duty to perform in respect to the emigrant' they have none in respect to his baggage. 4. They are charged with the duty of doing or causing to be done every thing in respect to the emigrant and his baggage and property, that is necessary to safety and comfort, and failing in this they incur a liability. Having taken possession of the plaintiff’s baggage, and failing to produce it on reasonable demand, they are responsible for its value.

      John E. Hevelin, for the respondents.
    The respondents, who are ten in- number, are officers appointed pursuant to statute to perform part of the functions of government, and are not a corporation. (Laws of 1847, ch. 195, § 4.) By chapter 474 of Laws of 1855, § 6, these public officers, the respondents, were directed to designate some one place in the city of Hew York, as the landing place in the said city for emigrant passengers, and they were by section seven of said chapter also authorized to purchase, lease, construct and occupy such wharves, piers'and other accommodations in the city of Mew York, as might be necessary for the purposes mentioned in the last preceding section. By section one of chapter 579 of the Laws of 1857, the respondents are authorized and directed to license steamboats, to remove and take off emigrant passengers from shipboard, and by section four of said chapter 579, they are also authorized to license persons to solicit passengers for boarding houses, passenger offices, &c. The protection of emigrants from frauds, &c. is a duty imposed upon the civil magistrates, not upon the respondents, except so far as the power to grant licenses is concerned, which is vested in them by the last named' law, and in a few cases where they are authorized to sue for and recover penalties incurred. (See chap. 219 of Laws of 1848.) Beyond this, the duties of the respondents, in regard to emigrants, are specified in section four of chapter 195 of the Laws of 1847, and sections six and seven of chapter 474 of the Laws of 1855, above referred to. It will be observed that all the duties of 'the respondents are imposed, and their powers are conferred by -law upon them as officers of the government, and are specified, as follows: 1. To .support and maintain indigent emigrants. 2. To designate a landing place in the city of Mew York for arriving emigrants. 3. To lease and occupy wharves and other accommodations for the convenience of emigrants landed at the wharf which ■ they are directed to designate. 4. To license steamboats to land passengers, and to license emigrant runners. They perform all these duties as the instruments of government; but are not directed or authorized by any statute to take charge of or convey from shipboard, or elsewhere, or in any manner interfere with the baggage of emigrants. By the testimony in this case, it appears that the wharf at Castle Garden was in 1855 designated by the respondents, pursuant to the direction of section six of chapter 474 of Laws of 1855, as the landing place for emigrants, and that a qualified assignment of the lease of Castle Garden was made to the respondents in that year ; and that the assignor reserved to himself the right to use, occupy and rent so much convenient space in such parts of the premises as shall from time to time be required for offices, for the purposes of renting or permitting the same to be used as offices for the sale of tickets, and for contracting for the transportation of emigrants, and of the luggage of emigrant passengers, and for no other purpose, the dimensions and location of such offices to be' regulated by the commissioners of emigration, subject to the approval by them of the rail roads and persons to. be admitted into Castle Garden, in other words, to the respondents' license. Ihat this assignor rented to various rail roads the privilege above reserved. That under this renting, and to facilitate their busines, these rail road companies employed steamboats, manned by their employees, to bring off emigrant passengers from ships in the stream; that the baggage of such emigrants was checked by such employees with rail road checks, and that when landed this baggage was taken in charge by their employees and kept in a baggage house of the rail road companies, still under the control of the rail road employees, and that neither the respondents nor their agents have connection witli the landing of the j>assengers or their luggage, or the care or custody of it, beyond giving licenses as above mentioned.'
    I. Even though a corporation, the respondents would not have been liable to the appellant in this action under the facts proved upon the trial. The box and contents were never delivered to the respondents or their agents; but on the contrary, to the employees and agents of the rail road companies having, offices in Castle Garden. (Story on Bailment, § 2; 1 Parsons on Cont. 569.)
    ■ II. As public officers of the state government, the respondents were in no manner liable to the appellant. 1. The respondents were not authorized by the laws of their being to make any contract for the acceptance, keeping or return of .baggage of any person, and consequently, if on the trial any such contract had heen established, it would have been ultra vires, and no action could be maintained upon it. (See laws above cited concerning powers and duties of the respondents.) 2. On the trial no such contract was proved, nor were there in evidence any facts from which it might have ■ been implied. 3. Public officers of government whose duties compel them, as did the duties of the respondents, to employ and arct by agents, are not personally responsible for loss occasioned by the neglect or any acts of the agents thus employed by them. (Lane v. Cotton, 1 Ld. Ray. 646; Whitfield v. LeDespencer, Cowp. 754; Story on Bailm. §§ 462, 463.) 4. And they are never liable in? their character of representatives of the government; or, in other words, the government is not liable for the neglect or laches of the agents whom it employs to transact the public business. (Story on Agency, § 319; Story on Bailment, § 462; Seymour v. Van Slyck, 8 Wend, 403, (422;) United States v. Kirkpatrick, 9 Wheat. 735; Dox v. Postmaster General, 1 Peters, 318; Whitfield v. LeDespencer, Cowp. 734.) The respondents are here impleaded in their official character as commissioners of emigration, and the government of the state is, therefore, the virtual defendant.
    III. The act of 1847, chap. 195, § 4, provides the fund under the control of the commissioners; directs its disposition, confining the expenditure to the care and maintenance of emigrants, their removal from one part of the state to another, assistance to procure employment for them, and to the purchase or leasing of lands, and erection of buildings necessary for the care and maintenance of emigrants. And the general term of the Common Pleas was therefore correct in not permitting to stand, but reversing, a judgment upon which execution might issue against the property in their possession, appropriated by law to certain specific purposes, among which is not that of paying or reimbursing a person for lost baggage. (Ch. 195 of Laws of 1847, § 4.)
   Selden, J.

The motion for a nonsuit in this case should have been granted, and the exception to the charge was well taken. The proof does not show the defendants were in any way interested in the transportation, or care of the baggage, of the plaintiff, or that it ever came into their "possession or under their control. The licensing of steamboat men and “runners,” as they are called in the case, does not make the licensed persons their agents, or render them responsible for their good conduct. (Lane v. Cotton, 1 Ld. Ray. 646.)

The ground, however, upon which the recovery below proceeded, was that the defendants were the principals in the transportation of passengers and baggage to the landing place appointed by them, and in taking care of the baggage when landed. This position can not be sustained. In the first place, thé commissioners of emigration, in their official character, in which character they are prosecuted, have no authority to engage in such business ; and if they were, in a body, to overstep the hounds of their official duty and engage in such business, the responsibility which would - attach to them in consequence of such business, would affect them as individuals, and not in their official character. In the second place, there is no evidence that either as a board or as individuals they have been in any way interested in, or connected with, the landing of passengers or baggage, or in the case of baggage after it was landed, or. have- appointed any agents for that purpose.

The government, in assuming control over the landing of emigrants and their baggage, does not undertake, either by itself or its officers, to indemnify emigrants against fraud, hut it has established the regulations, which have been referred to, in the belief, doubtless, that the opportunity to commit frauds would be thereby diminished. If those regulations have failed to protect the plaintiff, it is a misfortune, for which she has no remedy against the state or against the defendants. Her remedy is against the persons to whose care she entrusted her baggage, whose fidelity and vigilance the government has endeavored (in this instance unsuccessfully) to secure.

If any of the members of the board have failed in their duty, and the plaintiff has suffered in consequence of such failure, they may be individually liable, but the consequences' of individual misconduct,‘if there were any, could not be visited upon the board.

The order of the general term must be affirmed, and judgment absolute for the defendants ordered, in accordance with the stipulation.

Balcom, J.

Commissioners of emigration were named in the law of 1847, entitled “An act concerning passengers in vessels coming to the city of Hew York.” „ (Laws of 1847, vol. 1, p. 182.) Section four of that law declares that “the said commissioners shall be known as the commissioners of - emigration/ and by that title shall-be capable of suing and being sued.” The same law provides for the filling of vacan- • cies in the office of commissioners, and for the appointment of new ones by the governor, by and with the advice and consent of the senate.

Under the authority conferred upon the commissioners of emigration by sections six and seven of chapter 474 of the Laws of 1855, they designated Cast-le Garden as the place for the landing of emigrant passengers in the city of Hew Y ork, and they hired that garden for such purpose. But it was pursuant to chapter 579 of the Laws of 1857, that they licensed the steam tug, by which the plaintiff and her three chests of baggage were taken from the ship Ontario, which brought her into the harbor of Hew York.

The owners of the steam tug had the right to take the plaiútiff and her baggage from the ship Ontario to Castle Garden; and they incurred a penalty if they did nof carry the missing chest to the garden. (Laws of 1857, p. 243, § 5.) For the evidence shows all three of the chests were put on hoard the tug.

The plaintiff was not able to find one of the chests in Castle Carden, where all three of them should have been delivered by the owners of the tug. The one she did not obtain contained the two hundred and twenty sovereigns and property in question in this action.

The judge charged the jury that the doctrine of respondeat superior was applicable to the case, and that the defendants were superiors or principals. Also, that the defendants were liable if the property came into the possession of the agents or employees of the defendants, and was lost by their carelessness and negligence.

The jury must have found that the missing chest was lost or wrongfully detained after the same came into Castle Car-den, by the carelessness or negligence of Superintendent Kennedy or some .other agent, clerk or servant employed there by the defendants. For there was no ground for imputing personal carelessness or negligence to either of the commissioners of emigration.

Kennedy and the other persons were employed by the defendants in pursuance of section six of the act of 1847, which authorizes them employ such agents, clerks and servants as they shall deem necessary for the purposes specified in that act, and to pay a reasonable compensation for their services, out of moneys received by the chamberlain of the city of New York, from the masters and commanders of ships and vessels bringing emigrants to that city. (Laws of 1847, vol. 1, p. 186.)

The defendants are public officers, and their duties are prescribed by the legislature in the several acts to which I have referred, and by chapter 219 of the Laws of 1848. They were not liable in this case; for they were not guilty of any personal negligence. The only negligence established was that of their agents, clerks or servants. And the general rule is now'firmly established that public officers and agents are not responsible for the misfeasances, or positive wrongs, or for the nonfeasances, or negligences,’ or omissions of duty of the sub-agents or servants, or other persons properly employed by and under them1, in the discharge of their ’official duties. (Story on Agency, § 319.) I need not state the qualifications of this rule; for the defendants were not brought within any of them. They may, however, be seen in Story on Agency, sections 319 a, 319 b, and Story on Bailments, section 463.

The position of the defendants is distinguishable from that of persons acting for their own benefit, or employing others for their own benefit. fiffiey do not act for their own benefit, or employ agents, clerks or servants for their own benefit, but for the benefit of the community at large.

. The case does not show that the defendants receive any compensation for their services. ' But if. they do, the presumption is that the state or city of Hew York pays them.

My conclusion is that the judge erred in holding the defendants responsible for the carelessness or negligence of their ■ agents or .employees, and that the judgment against them was properly reversed and a new trial ordered by the general term of the court of common pleas; and that the order reversing the judgment should be affirmed, and judgment absolute rendered against the plaintiff with costs, pursuant to the stipulation made by her in her notice tif appeal to this court.

All the Judges concurring,

Judgment accordingly.