author: Johnson, J. Denio, Ch. J.

text:
    Lorenzo Coon v. Daniel Smith.
    An agreement establishing a corner or boundary line between adjoining land-owners, made under a mistake of facts, is not binding upon the party injured by the mistake, if he disavows the agreement upon discovering the mistake. He may then insist upon the true line, notwithstanding the former agreement.
    There is no difference, in this respect, between agreements establishing boundary lines, and agreements upon other subjects.

      Appeal from, a judgment of the General Term,' of the ' - Supreme Court in the Fifth District, affirming the judgment of a Special Term.

    The action was in the nature of trespass for an entry by the defendant upon the plaintiff’s land. It was proved that the defendant had been seen walking upon the locus in quo. It appeared from the evidence that the parties had been adjoining owners for several years. Some question had been raised as to the true line and the location of the corner between plaintiff and defendant. The defendant had caused a survey to be made, and the surveyor, in the presence of both parties, stuck a stake as the true corner and boundary line according to that survey. Something was said at the time about a mistake as to the number of chains having been made by the chain bearers, but they, on being referred to, said they had not made any mistake. The plaintiff’s evidence tended to show that the stake so stuck by the surveyor was agreed upon between the plaintiff and defendant as the corner and boundary line, and that it was agreed a fence should be built upon that line. It also appeared that the plaintiff did, within a short tiine thereafter, build a temporary fence from the stake, for a few rods, along that line. There had been no fence previously at that point.
    The defendant’s evidence tended to show that both parties were disappointed at the result of the survey and measurement, but that the-stake was stuck and acquiesced in by the defendant in the belief that the chaining had been accurately made, and that there had been no mistake in the number of chains measured. It also tended to show that another survey was made, within two or three weeks after the first, and the ground measured by the same surveyor and one of the former chain men, when it was discovered that a mistake had been made as to the number of chains in the first survey, and that by correcting the mistake the plaintiff’s premises would not embrace the lands upon which the trespass was alleged to have been committed. It was also shown by the plaintiff’s witness, from whom he derived his title, on his cross-examination, that if there was a mistake of one chain in the first survey the locus in quo would not come within the lines of the plaintiff’s farm. It also appeared from the evidence that a fence had stood as a line fence between the two farms, on the line claimed by the defendant as the true line, for over twenty years previous to the survey when the stake was stuck for the new corner. There was also evidence tending to show that the plaintiff, at the time the new corner and line were claimed to have been established, knew there had been a mistake in counting the number of chains actually measured. The plaintiff objected to the evidence offered by the defendant to show the mistake in the first survey and measurement, which objection was overruled and he, by his counsel, duly excepted. The case turned upon the question whether the defendant ivas bound by the new corner agreed upon, notwithstanding the mistake of fact upon which such agreement was founded, if there was in truth any such mistake.
    The justice charged the jury that if there waste mistake iii the measurement of the line of the defendant’s land, and the location of the corner was thereupon assented- to in ignorance of the mistake, the party injured by the mistake might have it rectified. He further charged that if there was. in fact a mistake, and the place where the trespass was alleged to have been committed would be on the defendant’s land according to true measurement,' and not on the plaintiff’s, the plaintiff could not recover. The plaintiff, by his counsel, excepted to each of these propositions separately. The jury found a verdict for the defendant. Judgment was rendered upon the verdict, and the plaintiff appealed to the general term, where the judgment was affirmed, and he then brought his appeal to this court. The case was submitted upon the printed case, and the points and briefs -of the counsel for the respective parties.

      W. C. Thompson, for the appellant.

      Starbuck & Sawyer, for the respondent.
   Johnson, J.

The only question presented by this case, of any moment, is, whether the defendant was bound by the new corner and line between the two farms agreed upon by the parties, if there was a mistake in the measurement upon which such agreement was founded-, and he was at the time in ignorance of such mistake of fact. The jury by their verdict have found that there was a mistake in the' measurement, and that the defendant was ignorant of it when the agreement was made. The mistake seems to have originated in a miscount by the chain-bearer, of one chain, in the measurement on the first survey. There can be no doubt that an agreement establishing a corner or a boundary line made under such circumstances, is not binding upon the party injured by the mistake, if he disavows the agreement upbn the discovery of the mistake. He may then insist upon- the true line; notwithstanding the former agreement. There is no difference, in this respect, between agreements establishing boundary lines and agreements upon other subjects. The cases cited by the appellant’s counsel, to prove that boundary lines may be established or changed by agreement between adjacent owners when acted upon and possession taken in pursuance of the agreement, have no application whatever to the present case. Not one of them touches the question upon which this case depends. There is no pretence that there has been any acquiescence by the defendant in the agreement, since the discovery of the mistake in the first survey. It was discovered within a few days after the agreement, and before anything of any consequence had been done in carrying it out, and the defendant acted upon it immediately. The case of Wheadon v. Olds (20 Wend. 174), shows to what lengths courts will go in disregard of contracts founded in a mistake of material facts, and in the protection of rights ■ prejudiced thereby. That was a sale of a quantity of oats in bulk, upon an estimate of the quantity, after a portion had been measured. The estimate of the quantity unmeasured was made by a comparison of the measured with the unmeasured pile, and the purchaser agreed to take them at the estimate, “ hit or miss,” or “at his own risk” as to quantity, and paid for them at the estimated quantity. The oats did not hold out within about 30Ó bushels of the quantity estimated and paid for. It was afterwards discovered that a mistake had been made in regard to the quantity measured, which formed the basis of the estimate, in counting the tallies as bushels, instead of half bushels as they were in fact. Upon these facts the plaintiff was allowed to recover back the money paid for the entire quantity which he did not receive.

The evidence to show the mistake in the first survey and measurement was properly received.

The charge to the jury was also right in all respects, and the exceptions are of no avail. The judgment, should, therefore, be affirmed.

Denio, Ch. J.

John LaFarge was the common source of title; the plaintiff’s conveyance was the earliest, and the defendant’s land, conveyed by a later deed from LaFarge, was, by the terms of that deed, bounded on the southerly side by the northerly line of the land which had been conveyed to the plaintiff. The plaintiff was, .therefore, entitled to all the land embraced in the description contained in his deed, and the defendant was entitled to all the land lying immediately north of the plaintiff’s northerly line. The westerly terminus of that line is not in dispute—the parties agreeing upon the corner at that terminus. From that point easterly, for a considerable distance, the line between the two parcels is not in controversy. But,the parties differ as to the true position of the northeast corner of the plaintiff’s land, which is also the southeast corner of the land of the defendant—the plaintiff" claiming it to be some fifty links northerly from the point at which the defendant locates it. If the plaintiff is right in his pretension, the- place at which the defendant cut down the fence was on the boundary line, and when he passed through the opening he committed a trespass upon the plaintiff’s land. On the contrary, if the defendant is -right as to the position of the corner, the fence was on his land,, and he had a right to break it down ' and enter through it. The location of that corner was, therefore, the vital question in the case. By the description contained in the plaintiff’s deed, it was to be ten chains and seventy-five links from the northeasterly corner of Joseph' Wager’s lot (which lies next south of the plaintiff’s lot), on a course fifty-five degrees east from the last-mentioned• corner. There was no question between the parties as to the position of that corner, and the evidence of the surveyors and the two- chain-bearers is positive, and it is uncontradicted by any other witness, that the place claimed by the defendant as the disputed corner, is at the precise distance from Wager’s corner which is specified in the plaintiff’s deed, and substantially in the course mentioned in that conveyance. This evidence establishes the case of the defendant beyond controversy, unless he is concluded by a different location of that corner by force of a valid agreement of the parties—the evidence of which is to the following effect: On the 20th of October, preceding the trial, the defendant applied to Mr. Ingerson, a surveyor, to run the line between him and the plaintiff. In order to ascertain the position of the corner in question, he commenced at the northeast corner of the defendant’s land, the boundaries of which were .known from' the description in his deed, and ran on the course established for the eastern boundary of all the lots towards Wager’s corner, the required distance, and put up a temporary stake. He then ran across the east end of .the plaintiff’s lot to Wager’s corner, but the chain bearers said that the line was fifty links short of what the deed called for. The surveyor called the attention of the plaintiff and defendant, who were present to the mistake, and set the stakes as he believed to be right, and ran and staked the line from the corner they fixed to the admitted western terminus of the division line. According to the testimony of the surveyor, both the plaintiff and defendant then said: “How we will have a good fence.” According to the plaintiff’s witness, the defendant requested the plaintiff to put his fence on the line thus run, and said he now proposed to have a good fence. It was shown that shortly afterwards the plaintiff constructed a rude fence of logs and. brush for about twenty rods, running westerly from this corner to where it joined an existing fence. Whether this was before or after the alleged discovery of the mistake does not clearly appear. Three or four weeks after the alleged agreement upon and settling of the corner, the same surveyor and chain-bearers re-surveyed the east end of the lots, and ascertained, as they testified, that the chain-bearers had, on the former occasion, made a mistake by omitting one chain in the distance they had run across the east end of the defendants land. There was some evidence of an original location of the line between the plaintiff’s and defendant’s land as the defendant claimed it to be, and also that the plaintiff, or his father, who was present and acting for him, knew of the mistake, or of some mistake, at the time of the alleged agreement. There was also some complication respecting the eastern line of the lots, not material", however, to the present question. The evidence tending to show a mistake in the measurement, was objected to by the plaintiff’s counsel, but the objection was overruled; and the judge finally charged that if such a mistake as alleged had been made, and the location of the corner was assented to in ignorance of the mistake, it was not too late to correct it; and that if, on account of such mistake,- the fence on which the trespass was committed was placed on the defendant’s land, the plaintiff could not recover. The exception to this instruction presents the only question in the case.

I am of opinion that it was entirely correct. There was nothing in the nature of a submission to the surveyor to fix upon the corner, if that could have been effectual. The defendant procured Mr. Ingerson to run the line, apparently for his own satisfaction. It was not the joint act of the parties, but of the defendant alone. From , what was' then done, he supposed the corner which was. set was the true one, and he assented that the fence should be placed on the line thus indicated; but a subsequent survey, made within a very brief period, showed that a mistake had occurred on the first occasion, and he then insisted upon what is shown to have been the true line,* according to the effect of the several conveyances. If by force of these circumstances the plaintiff had acquired title to the piece of ground lying between the two lines, then, notwithstanding the statute of frauds, mere words will change the ownership of real estate, under circumstances which would not affect any other legal rights. But if the plaintiff’s case were strong enough to establish an agreement in fact upon the line running from the corner first fixed upon by Ingerson, we have an express decision of' this court that it would not change the title or estop the defendant. (Baldwin v. Brown, 16 N. Y. 359.) In that-case, the boundary line which was allowed to prevail over the paroi agreement, by which a different one was sought to be established, was a line fixed only by long acquiescence, against what would otherwise have been the legal rights of the parties. This boundary, by user and acquiescence, was certainly not stronger than one established by the terms and effect of the" title deeds under which the parties held. In that case the agreement to‘change the line so as to make it a straight one, was far more satisfac- ■ torily proved than the alleged agreement in the present case. I am of the opinion that we cannot, upon the principle of that case, attribute any legal effect to what was said by the parties at the time the surveyor fixed upon the erroneous corner. I am of opinion,' moreover, that the mistake in the measurement would have invalidated the agreement if it had been otherwise essential.

There is nothing in the case which will support the allegation of an estoppel in pais. If the plaintiff actually built his fence before the mistake was discovered, he would not thereby have acquired title by force of an estoppel; but, as I have said, the order of these events is not satisfactorily shown by the case. I am for affirming the judgment.

All the other judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Mullin, J.

license: Public Domain

text:
    Clinton D. Brownell v. Christopher Winnie.
    The addition of the' name of another person to a several note, as maker, without the-knowledge or consent of the original signer, is not sucha material alteration as will avoid the note.
    Thus, where a note made by S., payable to W., or bearer, was delivered to W., who thereupon applied to the plaintiff to advance the money on it, and the plaintiff consented to do so, if he (W.) would sign his name to it, or become responsible to pay the same, whereupon W. signed his name to the note under that of S., and delivered the same to the plaintiff, who let him have the money thereon; field, that adding the name of W. to the note did not vitiate it.
    A county court, on appeal from a justice of the peace, has authority, under § 366 of the code, to modify the judgment, according to the justice of the case, without regard to technical errors.
    The general term of the supreme court has the same power, on appeal from a decision made at a special term.
    The court of appeals also possesses the same power.

      Appeal from a judgment' of the Supreme Court reversing judgments of the county court of Monroe, and of a justice of the peace.

    The action before the justice was on a note made by one Swinerton, to the order of the defendant Winnie, bearing date the 21st January, 1856, and was for the sum of $50, payable with interest on the 1st day of April then next. The complaint alleged that, after said note was made as aforesaid, it was delivered to said Winnie, and that after-wards,' and on, or about the 1st October, 1856, said Winnie applied to the plaintiff .to let him (Winnie) have the money on it. That the plaintiff consented to do so if he (W.) would sign his name to it, or become responsible to pay the same; and, thereupon,- .the defendant signed said note, and delivered the same to the plaintiff, who let W. have the money thereon; that $41 had been paid on said note, and the balance was still due thereon.
    The defendant, in his answer, denied the whole com-' plaint, set up the statute of limitations, payment, that the plaintiff .was not the owner, usury and want of consideration, as defenses.
    On the trial, the facts alleged in the complaint were substantially proved. The justice rendered judgment on the note' for $17.45 damages, and $1.37 costs.
    The defendant appealed to the county court, and that court affirmed the judgment of the justice. The defendant then appealed to the general term of the 7th district, .which court reversed both the judgments aforesaid, on the ground that adding the name of Winnie to the note after the note had become operative against Swinerton, without the consent of the latter, was such an alteration of it as avoided it, as against the parties. The plaintiff then appealed to this court.
    By computing interest on the $50 from 'the time the same was advanced by the plaintiff to Winnie, and allowing the payment of $41 which was made by Swinerton, the amount due from the defendant at the date of the judgment would be $14.31, instead of $17.48 allowed by the justice—$17.45 being the amount due on the note, computing interest from its date, after deducting the payment of $41 above mentioned.

      James S. Angle, for the appellant.
    I. The addition of Winnie’s name did not destroy the validity of the note as to Swinerton.
    1. In addition to the cases referred to in the opinion of the supreme court, in Chappell v. Spencer, wq refer to the following: Muir v. Demaree (12 Wend. 468.) In that case the facts distinctly present the point as to whether such an addition destroys the validity of the' note as to the first signer. Burton v. Baker (31 Barb. 241), is also in point. (See opinion on pages 257, 258.) The case of Cobb v. Titus (10 N. Y. R. 198), we think fully disposes of the questioú. See opinion of the court at large, and especially on pages 201, 202. (See also Partridge v. Colby, 19 Barb. 248.)

      2. Swinerton Tby his payment of $41 on the note in February, 1857, ratified, and affirmed the note as altered, and it certainly does not lie with Winnie to take advantage of his own wrong, and insist that the note shall be void as to Swinerton, when the latter himself affirms its validity.
    8. The fact that Swinerton made a payment on this note after the alleged alteration, was sufficient evidence to warrant the justice in finding a ratification by him, and such finding by the justice was conclusive.
    II. The defendant made a second jioint in the. supreme court to the effect that in no event could Winnie be made liable beyond the $50, and the interest thereon from the time the plaintiff let him have the money, and that the justice erred in rendering judgment for an amount including interest from the date of the note. To this point we say:
    ,1. It is true that Winnie is liable only to the extent of the $50, and interest on it from the time of his signing (see Cobb v. Titus, supra); but he has not been made liable even up to that extent. After he signed and transferred the note to the plaintiff, the latter held a binding obligation against Swinerton for the payment of $50 and interest thereon from January 21, 1856, and the liability of Winnie on the same obligation for $50, and interest thereon from the time he signed and transferred it to the plaintiff. ■ The payment of Swinerton should be applied first to extinguish that part of the debt which was not guaranteed or secured by Winnie. (Clark v. Burdett, 2 Hall’s R. 197.)
    2. The justice undoubtedly followed the true rule in computing interest and applying the.payment made by, Swinerton. The rule in such case is to apply the payment, in the first place, to the discharge of the interest due when the payment is made, and if the payment' exceed the interest, the.surplus goes towards extinguishing the principal. (State of Connecticut v. Jackson, 1 Johns. Ch. Rep. 17; Williams v. Houghtaling, 5 Cow. 86; French v. Kennedy, 7 Barb. 452.)

      3. The defendant made no point of this kind before the justice, nor was the attention of the justice directed to it; but, on the contrary, it was expressly stipulated that the justice “ should compute the interestpn the note;” which, of course, meant that he should compute it according to the legal rule applicable to cases where partial payments have been made, as established by the cases cited above. If the attention of the justice had been directed to this question, it would have been avoided, and it cannot be raised on appeal. (Dunham v. Simmons, 3 Hill, 609.) The opinion of the court is in point, more than the head-note to the case indicates. In a case in this court (White v. Madison, 2 Am. Law Reg. new series, 663), where there was some question as to whether the proper rule of damages had been adopted in an action upon a premium note, Judge H. E. Selden, in giving the opinion of the court, says: ‘1 That possibly might be regarded as a proper measure of damages upon the breach of warranty; but-whether this be so or not, no question having been made before the jury as to the amount of the recovery, if the defendant was liable at all, none can be made now.” (See also Code, §§ 330, 366.) But admitting that the justice included in his computation the interest on $50 from 21st January, 1856, down to the time of the transfer to plaintiff, and that it was error for him to do so, the entire judgment ought not to be reversed, but only as to that item of interest, which by computation can readily be separated from the rest of the judgment. (Staats v. H. R. R. Co., 23 How. 463; Story v. N. Y. & H. R. R. Co., 2 Seld. 85; note, pages 86, 87. See particularly that part of the note and the cases cited on page 87.) The calculation of interest is a mere clerical act; and it may be computed by the court (Townsend v. Chase, 1 Cow. 115); and the error (if error there were), would be the interest on $50 from January 21 to October 1, of the same year— being $2.44.

      John Van Voorhis, Jr., for the respondent.
    I. The signing of the note by Winnie, without the knowledge or consent of Swinerton, was a material alteration and change of the original instrument, and of its legal effect. It ceased to be the instrument executed by Swinerton. He was no longer liable upon it. It became and was only valid as the several note of Winnie. (Pigot’s case, 11 Coke’s Rep. 27; O'Neale v. Long, 4 Cranch, 60; Speaker v. The United States, 9 Cranch, 28; Gardner v. Walsh, 32 Eng. Law & Eq. Rep. 162; Potter v. Baker, 4 Paige, 290-292; Master v. Miller, 4 T. R. 320; Clark v. Blackstock, Holt, 474; Perring v. Hone, 12 Moore, 135; 4 Bing. 28; Wheelock v. Freeman, 13 Pick. 165 to 168; Burton v. Baker, 31 Barb. 241; Chappell v. Spencer, 23 Barb. 584.) An alteration of a joint note, making it joint and several, or of a several note, making it joint, are material alterations, and the instrument requires a new stamp. (See Clark v. Blackstock cited above.) Such being the case, the note is void for usury. It was a direct loan to Winnie of $50, and an agreement to pay interest therefor for a period of more than eight months prior to the loan. It was not a sale of the note. Winnie could not sell his own note. (Burton v. Baker, 31 Barb. 255.) The.amount of excess taken by the plaintiff over the consideration received by Winnie and lawful interest was $3.12. This is the amount of usury allowed by the justice. The appellant’s counsel cites several cases to show that the undersign-. ing of the note by Winnie is not an alteration of it, and does not affect its validity. The case most relied on is Cobb v. Titus (10 N. Y. Rep. 198.). In that case the court of appeals affirmed the judgment of the supreme court— all the judges concurring “ for the reasons given by Allen, J., below.” Ho additional opinion was delivered in this court. The question now under consideration was not raised in the court below, or considered by the learned judge, and therefore it is respectfully submitted, was not decided by this court. The evidence is not given in the case, and it is fair to presume that the undersigning of O. W. Titus was with the consent of the original maker. For some reason, satisfactory to the appellant’s counsel, the point was not made, and, of course, would not be decided. Had the question been raised before the referee, doubtless there was an answer to it. In Burton v. Baker (supra), Pratt, J., after expressing the opinion that .“if the signing of the note by Goodwin as maker with Wilcox was without the consent of the latter, he would be discharged,” speaking of Cobb v. Titus, says: “ -The case, therefore, is directly in point; and although it does not appear that any point was taken in that case, that the first party was discharged by the second party signing,, yet the point was clearly in the case, and the decision could not have been made except upon the assumption that he was not discharged.” “If an important consideration has been over-looked in the court of appeals, I think we should leave it to that court to correct the error.” Neither was the point raised or passed upon in Muir v. Demaree (12 Wend. 468), nor in Partridge. v. Colby (19 Barb. 248), both of which are cited by the appellant. In the latter case both signers were sued, and the only póints raised by Nason, the second signer, were: 1. That his contract was several, and not joint, and therefore the action could not be maintained. 2. That not being sued as a guarantor, there could be no recovery. 3. That he was an endorser, and had not been charged as such. These points were overruled. The question as to whether the alteration vitiates the note was not suggested in either of these cases. At the time Swinerton paid the forty-one dollars he did not know of the alteration of his note, nor is there any evidence that he ever knew of it.. He can not be said to have ratified or affirmed the validity-of the note, after an alteration, of the existence of which he was ignorant. The fact that Swinerton made the payment shows simply that he supposed he was holden on the note, and excludes the idea that he knew of the alteration. He could not ratify what was unknown .to him. If the alteration discharged Swinerton and made the note the several note of Winnie, the rights of the parties to this action were fixed, an,d it was not in' the power of Swinerton afterwards to modify or change the legal effect of Winnie’s contract. Besides, the-plaintiff did not present his case to the justice upon any such theory. The fact that the forty-one dollars was paid by Swinerton was not proved by the plaintiff. It was drawn out by the defendant’s cross-examination.
    H. In any event, Winnie can not be held for more than fifty dollars, and interest thereon from the time the plaintiff let him have the money. This is conceded. (See appellant’s second point; Cobb v. Titus, and cases- there cited.)
    I. But it is claimed that he has not been made liable even up to that event. If Winnie is a surety or guarantor, then his undertaking- is that Swinerton shall pay on the note fifty dollars, and interest from the time of his signing, Octtober 1, 1856. And whatever Swinerton does pay goes to reduce Winnie’s undertaking to the full extent of such payment. (Marryatt v. White, 2 Stark. Rep. 101; Ross v. McLaughlin, 7 Gratt. 86; Hamer v. Kirkwood, 25 Miss. 95; Spier v. Houston, 4 Bligh N. S. 515; Dows v. Morewood, 10 Barb. S. C. Rep. 183; Stendale v. Hankinson, 1 Simons, 393; Burton v. Baker, 31 Barb. 256; Edwards on Bills, 218; 2 Parsons on Contracts, 145; Raikes v. Todd, 8 Adolph. & Ellis, 846.) Suppose Winnie had signed a guaranty that Swinerton should pay on the note fifty dollars, and interest from October 1, 1856, would the legal effect of the obligation be changed? In Burton v. Baker (31 Barb. 256), Pratt, J., speaking of a similar loan of money upon an undersigned note, says: “It would be an absolute undertaking on the part of the borrower that the lender should, at all events, be re-paid his money with legal interest, with the chances of receiving an additional sum depending on the responsibility of the maker of the transferred note.” The case of Clark v. Burdett, referred to by the appellant, does not sustain the proposition in support of which it is cited. Sureties are the favorites of the law. (8 Wend. 516.)
    2. The defendant does not complain of an erroneous computation of interest by the justice. It was the duty of the court to compute interest, His error consists in allowing interest on the fifty dollars from January 21, 1856, when he should have allowed it only from October, 1856. He decided, as a matter of law, that the defendant was liable on the note to its full extent. He treated him as the original maker.
    3. This court will render such judgment as the county court should have rendered. The county court could not correct the error of the court below. It could only affirm or reverse the judgment in whole or in part. (Code, sec. 366.) It has no power to modify. A judgment that consists of parts may be affirmed or reversed in part; but a judgment upon a single cause of action is indivisible. The county court should have reversed the judgment, It could not correct it. (Kasson v. Mills, 8 How. Hr. Rep. 377; Staats v. The Hudson River R. R. Co. 23 ib. 463.) When the justice renders judgment for the wrong amount, even by mistake or inadvertence, the appellate court has no power to correct the error. It can only reverse the judgment. (Hardy v. Seelye, 3 Abbott, 103.)
   Mullin, J.

It has been too long and too well settled to be open for discussion that an alteration of a written contract in a material part, without the consent of the parties, discharges them from liability. TMs rule applies to bills and notes as well to all other species of contract.

It was held in England, in Gardner v. Walsh (32 E. L. & Eq. Rep. 162), that the addition of the name of a person to a joint and several promissory note, signed by two as makers, without the knowledge and assent of one of them, was such a material alteration as avoided the note. The same principle was applied in this state, in Chappell v. Spencer (23 Barb. 584), and in Edwards on Bills, 681.

In those cases, and in others which might be cited, the notes alleged to be altered were in terms joint and several. But I have found no case, and none has been cited, holding that a name added to a several note is such a material alteration as avoids it, and upon principle I can perceive no reason why it should be so held.

A note written, “I promise to pay,” &c., can never be made a joint contract, however many names maybe added tó it. The law permits an action against the makers, as upon a joint or several contract, but the contract itself is not changed. The liability of the first signer is the same,' however many may be joined in the action with him. The note continues to be payable on the same day, at the same place, and to the same person, and for precisely the same amount, and if there are any other parts of the obligation which can be considered material in' the sense that an alteration in that respect vitiates the note, I am unable to comprehend it. Permitting parties to be united in the same action with a several maker does not change the con-' tract. If that were so, the law of 1831, which permitted all the parties to a bill or note to be united in the same action, would have been unconstitutional as impairing the obligation of existing contracts, or then every bill or note then in existence would have been rendered void, unless actions thereon were prosecuted under the previous law. But no one supposed it was not entirely competent for the . legislature to regulate the mode of enforcing such contracts by uniting such and so many of the parties in one action as it deemed proper. But it may be said that in the case of notes and bills, the contract, although in form several, yet when signed by two or more persons it may be sued upon as a joint or several paper, is a rule of law which becomes a part of the contract, and the contract is to be construed in reference to it. This consideration does not change it. It is still a several contract, and is joint only for the purpose of the remedy upon it.

Again, if a several note is avoided by adding thereto the name of another as maker, without the consent of the first signer, who should be permitted to avail himself of the objection? Not the last signer, surely, for as to him the contract only takes effect from the day of transfer and to the amount he receives. His contract is not identical with that of the first maker, and signing by the second maker does not and can not vary the contract of the first. (Cobb v. Titus, 10 N. Y. 198, and cases cited.) Whatever rights the first maker may have to complain, the second can •have none.

The case of Partridge v. Colby (19 Barb. 248), decides the question under consideration in accordance with the foregoing views. But that case was over-ruled by the case of Chappell v. Spencer, cited supra. Although that case has not been itself over-ruled, yet this court, in Cobb v. Titus, came to a conclusion wholly at war with that case, and must be understood as over-ruling it and the cases on which it rests. In Cobb v. Titus the note was made by Yiele, payable to Robert Titus, or order, and delivered to him for a valuable consideration. Titus applied to the plaintiff to raise the money upon it, who refused to let him have it unless he would get O. N. Titus to endorse or sign it as security. O. N. Titus did sign it as security, and the plaintiff paid therefor fifteen dollars less than its face. The note was on interest. Yiele and O. N. Titus were sued; the former permitted judgment to pass against him, and the latter defended. There was judgment for the plaintiff for the amount advanced on the note by the plaintiff, and the case came to this court on appeal. Justice Allen, in his opinion, which was adopted as the opinion of this court, says: “The note is none the less the several note of Yiele, and valid as such, because the defendant has subscribed his name to it as surety and thus become collaterally liable for its payment. A difficulty might arise in treating it as a joint note, but that is obviated in this case.”

Although the point does not appear to have been distinctly presented in the case of Cobb v. Titus, that adding the name of 0.1ST. Titus was such an alteration of the note as avoided it; yet the court could not have decided the case, in favor of the validity of the note, without meeting and disposing of that question. It could not have been valid. against Yiele, as Justice Allen says it was, if the addition of the name of Titus rendered it void.

The case of Cobb v. Titus was understood by. the supreme court in Burton v. Baker (31 Barb. 261), as holding that the addition of a maker did not vitiate the note, and such, it seems to me, should be the law; especially as between the holder and the last signer of the note.

The judgment of the supreme court must be reversed, and that of the county court, and of the justice, affirmed. But as the plaintiff was only entitled to recover the money paid by him, and interest, deducting therefrom all payments made by the first signer, the judgment of the justice was for too much. Instead of being for seventeen dollars and forty-five cents damages, it should be for fourteen dollars and thirty-one cents; and unless the plaintiff will stipulate to allow this sum in reduction of the judgment, the judgment of the supreme court must be affirmed.

The county court had authority, under § 366 of the code, to modify the judgment according to the justice of the case; without regard to technical errors. The general term has the same power. (Staats v. Hudson River R. R. Co. 23 How. Pr. 463; Fields v. Moul, 15 Abbot, 6.) This court has the same power. (Tillou v. Kingston M. Ins. Co., 1 Seld. 405; Chouteau v. Suydam, 21 N. Y. 179.)

The judgment of the general term must be affirmed, unless the plaintiff will stipulate to deduct from the judgment of the justice the sum of three dollars and fourteen cents as of the day the judgment was rendered by the justice, in which event the judgment of the supreme court must be reversed, and that of the justice and of the county court affirmed as modified. /

All the judges concurring, judgment accordingly.


author: Hogeboom, J.

text:
    George C. Ball, Assignee, &c., v. Freeman Loomis, and others.
    Where the question is whether an assignment, made by an insolvent debtor in trust for the benefit of his creditors, is fraudulent in fact, the finding of the referee, upon conflicting evidence, that it is not fraudulent, cannot be legally disturbed by the supreme court.
    Notwithstanding the supreme court may reverse on a question of fact, such reversal must be consistent with the rules of law.
    It is not an irreversable and unqualified rule of law that there must.be an actual and continued change of possession, in order to shield an assignment of property in trust for the benefit of creditors from the imputation of fraud.
    The fact of there being no change of possession, is presumptive evidence of fraud, and conclusive, unless rebutted by affirmative evidence of good faith and the absence of an intent to defraud.
    Judgment creditors who direct the sheriff to sell property which has been assigned by the judgment debtor in trust for the benefit of creditors, and who indemnify him for so doing, are jointly liable with the sheriff to the assignee for such illegal act.

      Appeal from a judgment of the Supreme Court reversing a judgment entered at a Special Term on the report of a Referee.

    The action was brought by the plaintiff as assignee of Toynbee and Hopkins, under an assignment in trust for the benefit of creditors, against the sheriff of Kings county and various' creditors of the assignors, under whose several executions the sheriff had levied upon and sold the property of .the assignors. The referee found the following facts: That Thomas Toynbee and Josiah Hopkins, with the' plaintiff, on the Mth day of April, 1865, executed, and the said Toynbee and Hopkins delivered to the plaintiff, the instrument of assignment mentioned in the complaint; that at the time of the execution of the said assignment, and for a considerable time prior thereto, the said Toynbee and Hopkins were and had been the keepers, as co-partners, of a hotel and restaurant, in the city of Brooklyn; that at the time of ■ executing said assignment, the debts of the assignors exceeded the value of their property, and they were embarrassed in them circumstances and threatened with suits; that immediately after the execution of the said assignment, and on the same day, the plaintiff entered into and took possession of all of the assigned property, and continued in the possession thereof until the same was taken away from him by the defendants, as hereinafter mentioned; that the plaintiff, after he so took possession, kept the place open, continued the business, and advertised in the New York Herald for a purchaser of the establishment; that he employed one of the assignors, Mi*. Toynbee, to keep the books; and that the other, Mr. Hopkins, remained upon the premises, with his wife, assisted the assignee, and, with her, boarded at the house, without being charged for board; that the creditors of the assignors knew of, and assented to, the course pursued by the assignee in so keeping the said place open, and continuing the said business; that subsequent to the execution and delivery of the said assignment, and at and before the time of the talcing of the said goods and chattels, as hereinafter mentioned, the defendant, Lott, as sheriff of the county of Kings, held the executions mentioned in the several answers in this action against the said Thomas Toynbee and Josiah Hopkins; and that the defendant Hegeman was a deputy sheriff of the said county; and that the judgments • and executions mentioned in .the defendants’ answer were obtained and issued as therein stated; that the defendant Hegeman, deputy sheriff, and acting under the direction of the defendant Lott, sheriff, forcibly took from the possession of the plaintiff, and sold the goods, chattels, and property mentioned in the complaint, which had been assigned to the plaintiff, claiming to levy upon and sell the same by virtue of said executions, as the property of said Toynbee & Hopkins; and that the other defendants directed the said taking and sale, and indemnified the said Lott, the sheriff, from all loss or liability by reason of the said taking and sale. The referee further found, that the value of the said goods, chattels, and property, at the time of the taking away of the same by the defendants, was $3,300; and that the said assignment was not made with intent to hinder, delay, or defraud-the creditors of the said Toynbee & Hopkins, the assignors; and the referee found, as a conclusion of law, that the said assignment was not invalid, insufficient, illegal, or void, but that the same was and is valid. - He further found, as a conclusion of law, that the defendants wrongfully took and carried away the said goods-and chattels, and that they were guilty of the trespass laid to their charge in the complaint; and that the plaintiff was entitled to recover from the defendants the said sum of $3,300, with interest thereon, together with his costs. Judgment being entered upon this report at a special term, the defendants appealed to the general term, which reversed the judgment

      P. V. R. Stanton, for the appellant.

      John K. Porter, for the respondents.
   Hogeboom, J.

The plaintiff appeals from a judgment of the supreme court reversing a judgment for the plaintiff, entered on the report of a referee, and ordering a new trial, and stipulates for final judgment against him in case of affirmance. The action was by the assignee of insolvent debtors, against the sheriff and his deputy (and their indemnitors, the plaintiffs in certain executions in their hands against the insolvent debtors) for seizing and selling certain personal property assigned by the insolvent-firm to him; and the question was whether the assignment was fraudulent in fact. The referee held, upon conflicting evidence, that it was not. The supreme court, on appeal, held that it was. This raises the first question for consideration. I think the evidence was sufficient to justify the finding of the referee, and that such finding could not be legally disturbed by the supreme court. Notwithstanding that court might reverse on a question of fact, such reversal must be consistent with the rules.of law. The-court, in speaking of certain indicia of fraud, themselves declare the correct rule when they say “ they are, however, not conclusive in themselves, but only tend to show a fraudulent design; and if a jury should deem them consistent with the bona fides of the transaction (as the referee doubtless has done), the verdict, as well as this report, could not be disturbed on that ground alone.” This rule was applicable to all the questions of fact considered by the court, and should have controlled the result. The court were of opinion that there was not an immediate delivery and an actual and continued change of possession, and that therefore the assignment was fraudulent and void. The court, erred, I think, both on the fact and the law—that is, on the fact, there was sufficient evidence of an actual and continued change of possession and of the consent of the defendants who were plaintiffs in the executions, to the course pursued by the assignee, to put the conclusion of the referee on this disputed question of fact beyond the reach of reversal in the court above; and on the law, it is not correct to say that it is .an irreversable and unqualified rule of law that there must be an actual and continued change of possession in order to shield the transaction from the imputation of fraud. Such facts are presumptive evidence of fraud, and conclusive unless rebutted by affirmative evidence of good faith and the absence of an intent to defraud.

The other point on which the court below granted a new trial was for over-ruling the objection made by the defendants to the plaintiff’s question whether the assigned property would probably have brought as large a sum of money, if sold by the assignee, if the place had been closed, as by continuing it open. The only objection made to this question was that it was irrelevant. It plainly was not so, as it tended to show good faith and the absence of a fraudulent intent on the part of the assignee.

The other objections to evidence were also, I think, properly over-ruled. For the purpose of showing that steps were taken by the .assignee to sell the assigned property, it was proved that it was advertised for sale in the New York Herald and Brooklyn Eagle. This was objected to as incompetent, and the referee held it so, unless followed up by other competent testimony. To this holding the defendants excepted, but I perceive no legal objection to it. The papers were then introduced in evidence, under the defendants’ objection. The point of the objection is not perceived, further than as above stated. Counsel now .suggest that there was no evidence that it was so published by the procurement of the assignee; .but the objection does not appear to have been put on any such ground; and, moreover, the authority of the assignee for the publication was evidently either sufficiently proved or without objection assumed, at the trial.

It is further said that the referee erred'in excluding proof of declarations of the assignors.in continued possession of the property, as to their motives in assigning it. I think the exclusion was proper. It was not stated or suggested in the question or the offer that the declarations were made when the ■ assignors were in possession or were admissible on that ground; and as the referee finally arrived at the conclusion that the possession was not in them, but in the assignee, we may fairly conclude that it was for. that reason—and it would have been a sufficient one—that the objection was over-ruled.

It is further said that the referee erred in holding that ■the several judgment creditors, who had directed the sheriff to sell the property, and had indemnified him for so doing, were jointly liable to the plaintiff for such illegal act. I can not discover that this point was made at the trial, but if it had been, I think it was properly overruled. The illegal act was the trespass—the act of seizing and selling the property. In this act all the defendants were concerned, and for it they were all responsible, as they had all directed or authorized it. (Davis v. Newkirk, 5 Denio, 92; 3 Kern. 584.)

I think the judgment of the referee was erroneously reversed by the supreme court, and that the latter judgment should be reversed, and that of the referee affirmed with costs.

Sellen, J., also read an opinion in favor of reversal, and all concurred except Ingraham and Mullin, JJ., who were for affirmance, simply on the ground that the general term should have found the existence of fraud. Judgment reversed.


author: Denio, Ch. J. Johnson, J. Hogeboom, J.

text:
    The People of the State of New York v. The New York Central Railroad Company.
    An order for'an extra allowance, made by a single judge, before judgment, affects a substantial right, within the meaning of section 309 of the. Code, and is the subject of appeal to the general term,
    The right to make an extra allowance being a matter of discretion on tho part of the judge who makes the order, the court of appeals has no power to review the exercise of that discretion, or to examine as to the merits or amount of the allowance.
    This action was brought to recover a large amount of toll for property transported over the road of the defendant, and to obtain an adjudication declaring the act of the legislature, releasing railroads from the payment of tolls, unconstitutional and void. As appears by the affidavits used on the motion for extra allowance the amount involved in the action was more than ten millions of dollars, as near as could be ascertained of which five millions were claimed in the complaint for arrears of tolls. The action was tried at the Orange county circuit, and resulted in .the dismissal of the complaint; but the judge directed the exceptions to be heard in- the first instance at the general term, and ordered all proceedings to be stayed until such exceptions could be heard and decided. The cause was heard at general term, and resulted in an order denying a new trial, and directing judgment for the defendant upon the verdict. The attorney-general desiring to appeal, and both parties wishing to avoid the delay which would result from a motion for an extra allowance of costs, if made at this stage of the cause, a stipulation was entered into by which the attorney-general allowed $1,000 to be taxed as an extra allowance, and agreeing that after tie decision of the appeal in said action, the prevailing party might apply to the supreme court for such further allowanee as to the court should seem proper, with the same effect as if application for such further allowance were made immediately after the trial of such action in the supreme court. The attorney-general appealed to the court of appeals, where, after argument, the judgment was affirmed; whereupon a further stipulation was entered into between the attorney-general and the attorney for the defendant, agreeing that the motion for an extra allowance of costs should be made in either of the counties of Albany or Rensselaer, with the like force and effect as if made in the second judicial .district. Pursuant to such stipulation, a motion was made before a special term, held in the city of Albany, founded on all the papers, briefs, stipulations and proceedings in the cause, and on the affidavits of the attorney and counsel for the defendant, Messrs. Fairchild, Paige and Tremain, showing the extent and nature of the preparations required and made for the trial of the cause, and that an extra allowance of at least $20,000 was necessary to indemnify the defendant against the costs, charges and disbursements actually incurred by the defendant in the necessary defense of the action. The only paper read in opposition to the motion was an affidavit of Mr. Eeynolds, counsel for the plaintiff, stating that the company always insisted that the plaintiff’s action was without any * substantial foundation; and that, in his opinion, if any considerable time was spent in preparing' for the trial and argument, it was unnecessary. The court made an order granting $20,000. The plaintiff appealed from the order to the general term, in the second district; whereupon the défendant moved to dismiss the appeal, on the ground that the order was not appealable. The general term, after argument, made an order dismissing the appeal, with ten dollars costs. From the order dismissing the appeal, the plaintiff appealed to this court; and the defendant now moved to dismiss such appeal, on an affidavit, and on all the papers and proceedings in the cause.

      John H. Reynolds, for the appellant.

      L. Tremain for the respondent.
   Denio, Ch. J.

The stipulation between the parties, by means of which the application for a further allowance for costs was postponed until after judgment, contained a reservation of the rights of the respective parties. The right to a review was fairly included in this reservation, and that was possibly the motive for entering into the stipulation. But by postponing the application until after judgment, it was impossible to include the order for the further allowance in the judgment. The case, on its general merits, was consequently renewed at the general term and in this court, upon a record which contained no allusion to any such further allowance. It would violate the spirit of the agreement if we should hold that the plaintiffs are precluded by this course of proceeding from presenting to the tribunals of review any questions which might have been made if the application had .been heard and determined before judgment, and the order had been incorporated in the judgment. It follows, I think, that in considering the appeal from the order, we should act upon the same principle which would have governed us if we were sitting in review of the judgment, after án affirmance by the general term, and had found tiffs order for an extra allowance among the papers returned upon the appeal. If it had been made before judgment, the record returned here would have contained the papers used on the application, .the order of the special term making an allowance of $20,000 in favor of the defendants, the appeal, if there had been one, to the general term from the order, and the dismissal of that appeal on the ground that the decision , of the single judge at the special term as to the amount' of the allowance was conclusive. As it was made after judgment, pursuant to a stipulation by which all rights are reserved, we must, on the appeal from the order, exer - cise the same jurisdiction which would have belonged to us if the order had been parcel of the judgment; we can not in any other way give effect to the terms and plain intention of the stipulation.

If I am right in this view, the question before us is whether the discretion ,of the court, mentioned in the 309th section of the code, is an uncontrollable discretion of a single judge, not subject to be examined by the general term of the supreme court. If this is the case, ijfc is- obvipus that allowances in the nature of judgments for very large sums, may be passed by one judge, without a right to question their correctness before any higher tribunal, while many other orders and the verdicts of juries for any amount, however -small, are subject to be examined upon several successive appeals. The question, therefore, is, whether an order for an extra allowance made by a single judge before judgment, is the subject of an appeal to the general term. By the section of the code, providing for appeals from orders of a single judge to the general term (§ 349), one of the cases in which an appeal lies is where the order involves the merits of the action, or some parts thereof, or affects a substantial, right. It may, perhaps, be doubted whether a question respecting the costs can be said to involve the merits of the action; but. I think this order affects a substantial right, within the meaning of the section. In construing the section we see in the first place that it concedes that ttiere are some orders of a special term which are not the subjects of an appeal to the general term, and that such as affect a substantial right are not within that category. In a general way it may be said that every order which may be made in a cause affects, the rights of the parties in some appreciable manner. What, (lien, is meant by the term substantial right? In my opinion it is distinguished from a formal right. Suitors have :i certain right to require the observance of all the terms of legal procedure; but inasmuch as it would be productive of infinite delay and expense if every decision upon a matter of practice was subject to be examined on appeal, the legislature wisely determined that the litigation upon such points, which were generally of minor'importance, should be limited to the court or judge who first made the order. Parties frequently commit loches in the proceedings in an action, and are obliged to apply to the court for relief, or to be let in to answer or the like, and proceedings are frequently set aside for irregularity, upon or without terms; and the cause proceeds; and it may be eventually determined in favor of the party who was beaten on the motion. These orders, or some of them, are only important in respect to the manner in which the case is eventually to be tried on the merits. Without now undertaking further to classify them, it is sufficient to say that an order which peremptorily and finally charges a party with the payment of a sum of money, great or small, which he ought not to pay, or with a greater amount than he oughl to pay, affects his rights, not in a matter of form but in substance; and such was the nature of the order in this case. It was, therefore, examinable at the general term, and it was error in the general term to refuse to take cognizance of and to examine it on the merits, on the plaintiff’s appeal.

The further question is, whether we have jurisdiction to correct this error on an appeal from the order of dismissal. It is no answer to say that it did not enter into the judgment, and thus become an intermediate order within the first-subdivision of the eleventh section of the code. The stipulation waives that objection, as has been already stated. We have, on a former occasion, sat in review of the judgment, and have affirmed it; but the order was not then in the judgment, and could not be reached, if we would otherwise have had jurisdiction of such a question. We have-no jurisdiction to review intermediate orders before judgment in the action, except such as determine the action and prevent a judgment. But' on an appeal from the judgment we are to review any intermediate order involving the merits, and necessarily affecting the judgment. Supposing this order to have been made before judgment, and to have been brought up to the general term by the appeal from the judgment, as would have been the case but for the stipulation, could we say that it did not necessarily affect the judgment? To my mind, it affected it in this way: It rendered that absolute and final which was in law examinable at the general term, and this was affected by the order of dismissal which is appealed from. Hence I am in favor of reversing that order.

Whether we could examine the merits of the allowance is another question. We have, in several cases, disclaimed any right to interfere with an adjudication which was discretionary in the supreme court. The code, in terms, makes this matter of extra allowances discretionary. It is not implied from this, that it is the discretion alone of the single judge who makes the order; nor does that expression affect at all the jurisdiction of the several branches of the supreme court. When the case is removed to another court whose province it is to review determinations in matters of .law of. the "subordinate tribunals, the matter is presented in a different aspect, and it seems to me that we cannot review the .discretion of the supreme court.

Davies, Mullin and Weight, JJ., concurred with the chief judge.

Johnson, J.

The order at special term was made upon a summary application in the action# after judgment. It was a final order, and most clearly affected a substantial right. It cannot be doubted that a final order Which gives a party, to an action the legal right to demand, and to enforce the. collection of, the sum of $20,000, or any other snm of money, which he would not have, otherwise, is a substantial right.

Whether this court has jurisdiction to review'the. order appealed from, depends entirely,- in my judgment, upon the question whether the supreme court at general term should have reviewed the order of the special term on the appeal taken, instead of dismissing such appeal. If it should, a substantial legal right has been affected; and the fact that-the original order was made in a summary application after judgment, places the jurisdiction of this court to review the order in question beyond all doubt. This question is not in the least affected by the circumstance that the right to make the summary application for the order after judgment was seemed to, or conferred upon, the defendant by the written stipulation of the plaintiff’s attorney; nor by the terms of the stipulation, that after the decision of the action by the court of appeals the prevailing party on such appeal might apply to the supreme court for a further allowance, “with the same effect as if the application for such further allowance were made immediately after the trial of said action, in the supreme court.” It is quite immaterial how, or by what means, the defendant acquired the legal right to make his application in the action after-judgment, .instead of making it before judgment. It is enough that he had the legal right, and exercised it. The law then conferred upon this court* jurisdiction to réview the order upon appeal, and the parties could not, by the terms of their stipulation, deprive it of such jurisdiction. Parties cannot, by stipulation, limit or take away jurisdiction from a court, any more than they can confer it. The terms “ with the same effect,” contained in the stipulation, were doubtless intended by the parties to apply only to the validity of the order, which might be made upon the application provided for, and not at all to the jurisdiction of any court to review it on appeal. At any rate, they can have no other,legal operation. The stipulation did not, however, and could not, "nothwithstanding these terms, secure to the defendant the same rights in respect to the further allowance when made, that it would have had, had the application been made before judgment. Had it been made before judgment, the further allowance would have entered into the judgment and formed part of it. How it is no part of the judgment, but stands as a legal claim against the plaintiff, and depends upon the .validity of the order alone.

We come, then, to the question whether the supreme court at general term should have entertained the question apon the appeal, and determined the matter involved in the appeal upon its merits. I am clearly of the opinion that 4 should. That the right involved in the allowance, if it be a legal right, is a substantial one, Jias been already sufficiently shown.

The only question whiéh remains to be considered, therefore, is, whether the amount of a further allowance within the statutory limit, where it has been determined "that a further allowance is proper, rests in the mere arbitrary discretion of the judge, or whether such amount depends upon and is to be governed by some rule or principle of law. I have no doubt that it is strictly a matter of law when the judge making the allowance undertakes to give to the prevailing party any sum beyond what is necessary to indemnify such party for his expenses in the action, upon the facts appearing on the application. The code, §303, abrogated all the former rules and provisions of law on the subject of costs in actidhs, and provided that the prevailing party should have certain sums which are specified and fixed, “by way of indemnity for his expenses in the action,” and which are termed costs, in the act. It is then provided by § 309 of the code, that in difficult and extraordinary cases, with certain specified exceptions, where a trial has been had, “ the court may in its discretion make a further allowance to any party not exceeding five per cent upon the recovery or claim or subject matter involved.”

The object of this provision plainly was not to give exemplary damages or smart money Tby way of punishment to a party for bringing a difficult or extraordinary action which he should be unable to maintain, nor to enable the prevailing party to make anything in the way of gain or profit over and above the expenses for maintaining or defending such an action. This cannot be claimed with any show7 of reason. . The object and intention, manifestly, were to enable the prevailing party to obtain indemnity for his expenses in actions of this kind, which would not be covered by the ordinary allowance prescribed for all actions. And any allowance beyond what was necessary to indemnify for the actual expenses of the action would be . as unauthorized and illegal as the allowance of an improper item in a bill of costs upon taxation; and the right to redress would be just as clear and certain in the one case as in the other. Such being the nature and character of this further allowance, it is plain that the party against -whom the allowance is made has the right of appeal from the order, whenever the question is fairly raised whether the limit of indemnity for expenses of the action has not been transcended, in view of the facts before the court upon which the allowance is made. And I am clearly of the opinion that no such allowance can be rightfully made in any case without proof, showing the necessity of further indemnity, for the expenses of the action, and the amount of the expense incurred for which indemnity is thus sought. Most certainly this should be required where the application is made before a judge who did not try the action. The. order cannot properly be made and the amount fixed upon mere speculation or conjecture, but must be based upon due proof showing the action to be a proper one for such an allowance, and the necessity of further allowance for the pmrpose of indemnity for ex2>enses actually incurred, and which are the 23roper subject of conrpensation by the rules of law. It is conceded by the plaintiff’s counsel, that the action was sufficiently difficult and extraordinary in its character to justify the further allowance of some amount by way of indemnity, but it is insisted that the evidence before the court did not justify the allowance of this extraordinary and unprecedented sum.

On the other hand, it is claimed, in behalf of the defendant, that the amount within the statute limit of five per cent on the amount claimed, or subject matter involved is matter of pure and unmixed discretion in the judge by whom the amount is fixed, without reference to any fact or circumstance 'other than that of the difficult or extraordinary character of the action; and that had the judge in this case granted an allowance of $250^000, or even $500,000, no appellate court could have interfered in any way, and the allowance would have stood a perfectly legal and valid Claim capable of being enforced against the plaintiffs. This would, certainly follow, if the amount within the limit of the. statute is a matter qf discretion simply on the part of the judge, and does not depend upon any legal principle or rule; which I have endeavored to show is not the case.

It is true that the language of the section is, that “the court may also, in its discretion, make a further allowance.” But this manifestly does not mean a mere arbitrary unregulated discretion, but a judicial discretion to be exercised upon certain conditions, and in reference only to certain definite ends. It can be exercised only in a certain class of cases; it cannot exceed a certain percentage, whether full indemnity for the expenses of the action is thereby secured or not; and must, as we have seen, be confined to indemnity—for the expenses, contemplated by the section, alone. If it is attempted to be exercised in an ordinary action in no respect difficult; or if the prescribed percentage is exceeded, or the allowance exceeds a just measure of indemnity according to the proofs, it is exercised in violation of a legal right, and an appeal lies the same as for any other error of law.

It is not necessary for this court to determine that the general term should, have reversed the order of the special term, hut only that the order was appealable, and the appeal, should have been entertained, and the matter involved in it there passed upon. But as the whole case is before us, we may and ought, I think, to determine what items of expense may be properly included in such an allowance. The amount allowed is altogether unprecedented, equal to the salary of the learned judge who granted the order, for his official services for over five years and a half, and leads almost irresistibly to ;'the inference that some item of expense must have been included, which the law does not authorize and will justify. It was held by this court in Wolfe v. Van Nostrand (2 Comst. 570), that this further allowance under §309 was, by way of indemnity, for the expense of the trial in the court of original jurisdiction, and not in the appellate court. That decision was, I think, clearly correct, and in strict accordance with the design of the statute, and the uniform practice of the courts. The allowance can only be made where a trial has been had, even in difficult and extraordinary actions, and the practice is to make the motion for -it immediately after the trial, without reference to future proceedings by the other party, and to have the sum inserted in the judgment, with the other costs.

It is obvious in the present case, looking at the notice of the motion, the several affidavits used, and the opinion of the learned judge who made the order, that the allowance was made in reference to the entire proceedings in the action throughout, from its commencement to its final determination in the court of appeals. And besides, the papers fail to show that this extraordinary amount of expense has been either paid or incurred by the defendant. The allowance is by way of indemnity for actual expenses in the action necessarily, or at least reasonably, incurred, over and above the amount covered by the. allowances fixed in the statute, and not for speculative or extravagant charges because they are made, even if submitted to by the party prevailing. It should be shown not only what the expenses are for which the further allowance is claimed, but also that they have been necessarily, reasonably, and fairly incurred in reference to the trial.

In this view it is quite clear that the appeal to the general term was properly taken, and should have been there entertained, and the merits passed upon. The order of dismissal should, therefore, be reversed.

Hogeboom, J.

(dissenting). In this case I have come to the following conclusions:

1. The case is difficult and extraordinary, within the meaning of section 309 of the code. The character and magnitude of the claim, the importance of the interests involved, the length of time it has occupied, and the severity with which it has been contested, bring it fairly within the purview of this section. It is not denied to be so by the plaintiff’s counsel, and it was practically conceded to be so by the original stipulation for an extra allowance. The case is, therefore, one in which the judge had jurisdiction to act.

2. The court which made the allowance, kept within the limits of the statute—that is, it did not make an allowance for an amount exceeding that authorized by the code. The claim was $5,000,000, and the allowance was less than one-half of one per cent of that sum, instead of five per cent, which it had the power to make. There was, therefore, no violation of the statute in this particular.

3. It was a case plainly by the terms of the statute, within the limits prescribed, in the discretion of the court. The express words are that “the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim.”

4. Judicial discretion is not subject to review m an appellate tribunal. From its very nature it can not be subjected to any fixed or very precise or definite mode of action. And it is impossible for an appellate court, though it may differ with the original tribunal in such cases, to say that it has erred in law. -There is no standard by which the true boundaries of discretion may be gouged or measured. Hence, by a uniform course of adjudication, matters resting within the discretion of the primary court are-held to be not open to review or discussion upon appeal.

The objection that discretionary power is not reviewable on appeal is not obviated by saying that this order “affects a substantial right,” and was, therefore, reviewable at the general term .under section 349 of the code.. It does not involve a siibstantial right, in my opinion, within the meaning of the code. For although an extra allowance so large as that made in this case affects materially the amount of the recovery or judgment, it does not affect a legal, fixed or determined right. A substantial right is something to which, upon proved or conceded facts, a party may lay claim as matter of law—which a court may not legally refuse—and to which it can be seen that the party is entitled within well séttled rules of law. There is many a point of practice and matter of discretion, the decision of which may directly or indirectly affect a party’s pecuniary interests to the amount of thousands of dollars, and in a loose and general sense may be said to affect a substantial right, but which has never been pretended to be embraced within this language. I have supposed that by a series of well-considered decisions mere questions of practice and of discretion have by nearly unanimous judicial construction been regarded as excluded from the terms and not the spirit of this section of the code.

5. It has been said in some cases that this rule is subject to this qualification, that when the discretion shall appear to have been abused, the appellate forum may interfere. And there are cases holding that a gross and palpable abuse of discretion may be controlled and reversed. It has been doubtfd whether the power of review in such a case rests upon any very clear or firm foundation in the law, but I will assume it to exist. Making this assumption, I am not prepared to say that there has been in this case any such abuse of discretion as authorizes an appellate tribunal to interpose. The exercise of an honest judgment, however erroneous it may appear to be, is not an abuse of discretion. Abuse. of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. In none of these particulars, in my opinion, is there just cause for imputation against the judge who pronounced this decision. Independent of his high character and position, I can find nothing in the facts of the case which justly exposes him to censure in these respects. He may have erred in judgment. It is not our province, I think, to determine whether he did so or not. It is quite possible many or any of us would not have reached the same precise conclusion. But this is not and can not be the question. The question is, has 'his discretion been abused—has the result arrived at by him been produced by the exercise of an arbitrary and unlawful discretion? I am not prepared to say that it has.

It is said this was a question for the general term of .the supreme court, and that they have not passed upon this aspect of the case, and that therefore their order should be reversed and the case remanded to them with directions to consider it in that respect. But I think this is not so, for the following reasons:

1st. It is not clear that they have not examined this view of the case. ■ They dismissed the appeal, it is true, as an order not appealable, and so far as we can infer from their opinion, as not appealable because governed by the discretion of the original tribunal, but we can not tsay, I think, whether they put their decision upon the ground that no review whatever could be had in any case where discretion was invoked, however flagrantly improper or. corrupt may have been the exercise of that discretion, or upon the ground that no case for interference upon appeal had been made because there had not been any abuse of discretion or assumption of unlawful or unregulated authority.

2d. If it is clear to us that upon the same papers before us as there were before them, there was no such abuse of discretion as would justify a reversal of the order of the original tribunal, we may well affirm their order, or dismiss the appeal from it upon the well-established rule that a right result' is not to be overthrown though founded upon a wrong reason. • So far as the question of discretion is concerned, the right of review is precisely the same with them as with us. If there has been no exercise of discretion that can be properly interfered with by an appel late tribunal, the disability to interfere is the same with them as with us, and the same with us as with them. It rests upon general principles of law forbidding an interference with judicial discretion. It would, therefore, be quite useless to remand the case back to them to sit in review upon the exercise of a discretion with which we are of opinion neither they nor we can lawfully interfere.

3d. So far as we know, it was not urged before them, as it has not been by the plaintiffs’ counsel here, that they were bound to interfere because there had been that kind of1 abuse of discretion which justified its being corrected and rebuked for the, arbitrariness or perversity of its exercise. If counsel will not press the case in such an aspect, it cannot be regarded as the duty of the court to strain for reasons of that description to justify its interference. Hundreds of cases.are every year disposed of in pur courts upon the ground that an erroneous exercise of discretion is not the subject of appeal, without its having, been thought necessary to argue or decide the appealability of the discretionary order on the ground of abuse of discretion. The contrary is always to be presumed; and. it must be a very flagrant and exceptional case to justify an argument or a decision founded upon such a view of the case. Nor has the propriety of the numerous decisions, refusing to interfere in cases of discretion, been impugned, that I am aware of, because, in the opinion of the court, the point has not been mooted or debated whether the order of the primary tribunal, was not liable to be overthrown for abuse of discretion. °

4th. Finally, this court has decided in the case of The New York Ice Company v. The Northwestern Insurance Company (23 N. Y. 357), that even where the general term of the supreme court has entertained an appeal from an order not appealable, because resting in discretion, and has reversed it, this court will not entertain an appeal from the decision of the general term. .

If this case, therefore, is to turn on the question of discretion, or its abuse, I am of opinion that the appeal from the order of the general term should be dismissed.

6. It is said, however, that there is a question of power' in the case, and that the judge exceeded his authority because he based his allowance in part upon matters not authorized to be taken into ■ consideration, to wit: upon expenses not incident to the trial of the cause.

1st. It is not quite manifest, upon the published opinion of the judge, whether he graduated his allowance in part upon the expenditures incurred on appeal, or merely alluded to them to illustrate the difficult and extraordinary character of the case.

2d. But I am of opinion that the proper construction of the statute authorizes the judge to graduate the allowance by a consideration of all the necessary or probable reasonable expenditures incurred, or to be incurred, in the course of the whole litigation. The code declares it must be in cases “where a trial has been had,” but by no means limits the allowance to the expenses of the trial. It is the difficult and extraordinary character of the case, the amount in controversy, the severity, extent and duration of the litigation, which are all to be considered on this question, and which enter into the equity of the allowance. Section 308 makes certain allowances in particular cases upon the recovery of judgment, but not because the expenses are .principally incurred in the recovery and entry of the judgment, but in the cause itself—the proceedings necessary to its proper commencement, conduct and consummation, and the character of the subject matter involved.

I am further of opinion that, as the matter is left to the discretion of the judge, and no precise mode is prescribed for obtaining the information on which his discretion is to be exercised, he may do it—especially if not objected to by the parties—in any mode likely to procure authentic knowledge of the particulars which should govern him in fixing the allowance. This may be in part from his own knowledge of the case, obtained in the course of the trial; in part from the 'sworn or uncontroverted statements of counsel and parties; and these may have reference to prospective as well as past litigation. In the case now before us, no objection to the sources of information is made; the facts appear by affidavit, and come up in that way by the consent of the parties.

It is suggested, it is true, in a very brief memorandum, in the case of Wolfe v. Van Nostrand (2 Comst. 570), that the allowance should be regulated by what appeared on the trial; but this was not the point in judgment, nor necessary or proper to the decision of the case. It can scarcely have been intended as binding authority; nor should it have that effect. It does not appear to have been much considered on this point, nor does it discuss the lan: guage of the statute.

7. It is further contended that, inasmuch as the object of these allowances, both in law and in reason, is indemnity to a party; and inasmuch as there is no evidence in the papers that an amount so large is necessary for such purpose; and inasmuch as such amount appears to be unreasonable and excessive, the matter is within the control of the appellate tribunal, and it has a right to interfere because the special term has transcended in effect the limits of the statute. ' But this rather assumes the point in controversy. The allowance should not pass the bounds of a just indemnity; but what those bounds are, is left, below a certain maximum amount, to the discretion of the original tribunal. The opposing papers do not name any certain amount, and the moving papers name the amount actually allowed. What was actually charged by counsel to client does not appear; but that is not the test, as it may have been extravagant. Nor is the omission to state in the papers the precise amount which would constitute indemnity, a fatal omission. The matter is after all referred to the judgment of the court, and when that is honestly, and not arbitrarily, exercised, it is in my opinion final.

Such a view of the case may in some instances work injustice and lead to extravagant' allowances, but, as was said in the court below, the vice is in the system itself. I agree that that is wrong, and should be corrected; but I think the correction should come from the hands of the legislature, and not of the courts.

On the whole, I regard the order as properly disposed of at the general term of the supreme court, and as not properly here for consideration upon its merits. I think the appeal should be dismissed.

Selden and Tsgbaham, JJ., took no part in the decision.

Order reversed.