source: Caselaw Access Project

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

license: Public Domain

text:
    George Thurst v. William H. West.
    Where it is alleged in the complaint that the action is brought to recover for taking away plaintiff’s horse, detaining him for a limited time, and injuring him, a judgment following such complaint does not have the effect of changing the property in such horse.
    If the action had been in the nature of trespass or trover for the horse, a recovery and satisfaction would have changed the title.
    The minutes of testimony taken by the justice on the trial before him -may be read in evidence, to determine whether the scope of the issue being tried before him was changed by the evidence, for the purpose of determining the subject matter of the litigation.
    The action, was brought to recover possession of a certain horse from the defendant. The facts were as follows: One Kéllerhouse, who was a constable, by direction of the plaintiff seized the horse in question, by virtue of an execution in the plaintiff’s favor, against Joseph West. The constable was indemnified for the taking by the plaintiff. After keeping the horse a short time, he was delivered to one George Wright, who became receiptor to the constable for the same. The defendant thereupon brought an action against the plaintiff, Kellerhouse the constable, and one Davis, before a justice of the peace, of the town of Bed Hook, for. the taking of the horse. The complaint before the justice alleged that “the said defendant unlawfully broke and entered the close and possession of the said plaintiff, situated in the town of Hilan, and then and there, wrongfully and unlawfully, took and carried aufay a certain sorrel stud horse of the said plaintiff, and kept and detained him, to the great injury of the said plaintiff, whereby the said horse was greatly injured, and the said plaintiff lost the services of said horse, and other injuries to the said plaintiff, thereby then and there did to the great damage of the said plaintiff, and the plaintiff demands judgment for $100, besides costs of this action.” The constable, Kellerhouse, answered by a general denial, and the plaintiff justified the taking under his judgment, and execution against Joseph West.
    The plaintiff in that action recovered a judgment for $102.84, damages and costs, against the plaintiff and Keller-house. The plaintiff in this action thereupon paid the judgment. The horse was not sold on the execution. It appears from the evidence that, at the time of the trial, the horse was in the possession of the defendant, but it does not appear how, or when he came to the possession, nor whether it was then known to the defendants in that action that the horse was not in the possession of the receiptor. There was no evidence before the justice as to the value of the horse, except the price which the defendant paid for him when he bought him, which was $100, and which evidence was received without objection; and there was no evidence whatever that any injury had been done to the horse, so far as appears upon this trial. It was shown by one witness upon this trial that the horse was worth $250, and there was no other evidence as to value. The plaintiff, in order to make out his title to the horse, offered in evidence the justice’s docket, containing the judgment and also the pleadings in the action before the justice. To this the defendant’s counsel objected, on the ground that said judgment and pleadings were not between the identical parties to this action. The court overruled the objection, and the defendant’s counsel excepted.
    The testimony taken on the trial before the justice was also read in evidence, from the minutes kept by him. After the payment of the judgment before the justice, and before the commencement of this action, the plaintiff Caused the horse to be demanded of the defendant, who refused to deliver him, claiming that he still owned him. At the close of the plaintiff’s evidence, the defendant, by his counsel, moved for a nonsuit on several grounds, and amongst others, that the recovery of the judgment before the justice, and payment thereof, did not change the title to the horse, and that it should be determined as matter of law that the recovery before the justice was for damages merely, and not for the value of the property; also, on the ground that if the"title to the ",operty was changed, the plaintiff could not maintain the. action in his own name, but should have joined the constable with him as plaintiff. The judge refused the pon suit, and the defendant’s counsel excepted. The motion was again renewed at the close of the evidence in the case, and again refused, and a like exception taken.
    The judge then submitted the question to the jury to determine whether, from the pleadings and the evidence in the action before the justice, the defendant intended to recover, and did in fact recover the value of the horse, and instructed them that if they found in the affirmative on that question, the plaintiff was entitled to recover. To this charge the defendant, by his counsel, in due form excepted. The jury found in favor of the plaintiff, and assessed the value of the horse at $10.0, Upon this verdict judgment was entered in favor of the plaintiff for a return of the property, or a recovery of the value in case a return could not be had, with costs of the action. From this judgment the defendant appealed to the. General Term in the second district, where the judgment was affirmed, and he now brings his appeal to this court.

      J. H. Reynolds, for the appellant.

      John K. Porter, for the respondent.
   Denio, Ch. J.

Though the complaint in the action in the justice’s court was somewhat vague and equivocal, the fair construction of it, I think, was that the defendant had taken away the plaintiff’s horse and detained him for a limited time, and had injured him: The statement that he had been injured, and that the plaintiff had lost his' services, would have been unnecessary and incongruous in an ordinary action of trespass or trover for a horse. I conclude, therefore, that a judgment following that complaint, if there had been no departure from the cause of action set out in it, would not have had the effect to change the property in the animal, and that the present action could not have been maintained.

But I am inclined to the opinion that, without a formal amendment, the scope of the action may have been so changed by the course of the trial and the kind of evidence admitted, that it may be affirmed that a recovery was eventually had for a simple taking of the horse, as in an action of trespass or trover. The statutes relating to courts of justices of the peace, contain these provisions: “ Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended. (Code, § 64, subd. 5.) “ A variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby.” (Id., subd. 10.) “Whenever issue shall have been joined in a suit before a justice, if no jury shall have been demanded by either party, the justice shall proceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same according to law and equity, as the very right of the case may appear.” (2 R. S., 242, § 91.) Supposing it to have appeared, on the trial of this action before the justice, that the defendant had wrongfully taken the plaintiff’s horse, and nothing had appeared to show that the plaintiff had repossessed himself of the property, or it had been shown that the defendant had converted him to his own use, and the justice, disregarding the language of the complaint, had given judgment for the value of the horse as for a taking by trespass or a conversion, the judgment would not have been void; and if no objection, raising a question of variance, had been taken, perhaps it would not have been erroneous. It would have been a recovery for the trespass or conversion, and would have changed the property in the horse. There, was some reason to suppose this may have been so, from the amount of the recovery, which was the same amount which the plaintiff in that action had paid for the animal. This, I concede, would not have been enough for the purposes of the present plaintiff; for the assessment of an excessive amount of damages in an action for an injury to the property would not have changed the legal character of the recovery. But the defendant, in the present case, was permitted to, and did give in evidence, the minutes of the testimony in the action before the justice. They are not set forth in the case in this action, and we cannot say how far they did or did not warrant the allegation that the scope of the action had been changed by the evidence taken before the justice. It was, indeed, proved on the trial of the present action, that the plaintiff, in the justice’s court, had the horse in his own possession when that action was tried. But we do not know that the case was so presented by the evidence before the magistrate. The wrongful taking may have been proved, and nothing else. I am of opinion that the minutes of the testimony were properly received. When they had been read in evidence and the facts as to what took place to change the scope of the issue were clearly ascertained, it was no doubt a question of law whether the recovery was for the value of the property dr for damages for injuring it; but the history of the trial and the nature of the evidence given were matters of fact. The proper course was for the judge to leave the case to the jury, with proper instructions as to the effect of a departure from the complaint in making out a ease upon the evidence. We are to presume that the proper instructions were given.

When the motion for a nonsuit was made, in the case we are reviewing, the minutes of testimony had not been given in evidence. The case then stood upon the pleadings and the judgment in the action before the justice, and if I am right as to the meaning of the complaint, the plaintiff should have been nonsuited. But a different case was presented when those minutes had been received, and if they were to the effect which I have suggested, and the jury have found that they were, the error was cured.

The circumstance that another person was sued with the present plaintiff, in the action before the justice, was not, under the circumstances, material-. The plaintiff was the party for whose benefit and at whose instance the seizure, which- was the foundation of the action, was made. The officer is to be considered his servant. As the process did not warrant the seizure, his official character was of no importance. In such a case, if the servant were sued alone, I think- the property would, by force of the judgment, have vested in. the party by whose command and for whose benefit the trespass was committed.

The appeal from the justice’s judgment was abandoned. The notice of the discontinuance of the appeal, and the bringing of this action, grounded on the effect of the judgment, was a sufficient waiver of the appeal.

I am in favor of affirmance.

Johnson, J.

The pleadings and judgment before the justice were competent evidence for the plaintiff. It was no objection that the judgment before the justice was against the plaintiff and the constable. The constable, as appears by the evidence, was acting for the plaintiff, and was indemnified by Mm. The plaintiff was therefore the principal in the transaction, and the constable Ms agent, having no interest in the matter, other than his right to be made whole in case of loss. By the payment of the judgment, all his interest in the matter was extingmshed, and whatever right or title was derived from the payment, inured wholly to the principal, by whom it was made. This is so upon the plainest principles. If the recovery, therefore, before the justice was for the value of the horse, payment and satisfaction of the judgment would change the title to the animal, and vest it in the plaintiff. The title in such a case is transferred by operation of law. (2 Kent Com., 387, 388; Osterhout v. Roberts, 8 Cow., 43.)

Whether the defendant, in Ms action before the justice, claimed and actually recovered the value of the horse, as the value was there made to appear by the evidence, was most certainly a question of fact. It cannot be affirmed that a claim and judgment of that description, were a legal impossibility, under the pleadings. On the contrary, I entertain no doubt that the declaration would uphold such a judgment in a justice’s court. Certainly, if the question was litigated, such a judgment would be final and conclusive upon the parties. It is certainly not very clear from the complaint what the real ground of the action was. The justice entered it in Ms docket as a complaint in an action of trespass, for wrongfully and unlawfully taking and leading away and detaining plaintiff’s horse.” The taking and detention having been justified by the answer to have been by virtue of a judgment and execution against another person, the defendant’s title to the animal was of course in issue, and a proper subject of litigation under the pleadings. It is claimed, however, on the part of the appellant, that it is made entirely certain by the pleadings before the justice, and the evidence as to what took place on that trial, that the questions of conversion and of the value of the property were not litigated before, or passed upon by the justice, and that the court should have so held, as matter of law, and non-suited the plaintiff, instead of submitting it to the jury to be determined as a question of fact. But I am of the opinion that it was a proper case to submit to a jury. The fact that the defendant had the horse in his possession at the time of the trial before the justice, was not of itself a fact of any great weight, one way or the other. It does not appear that he had the horse in his possession when he commenced his action before the justice, nor how he came to the possession he had at the time of the trial. The presumption, I think, from the other evidence is, that he had taken him from the receiptor, and held him subject to the execution until its validity could be tested. Besides, it does not appear that the fact of the defendant’s possession at the time-was known to the plaintiff, or was the subject of inquiry or evidence at the trial. The constable had, a few days before, very properly delivered the animal to a receiptor, and the inference would be, in the absence of all evidence to the contrary, that the defendant was then holding it for the receiptor, and subject to his obligation to deliver it up to the constable. There was no evidence before the justice of a return of the property to the defendant, as owner, in mitigation of damages or otherwise. There seems to have been no evidence before the justice that the horse had been < in any way injured by the plaintiff or the constable, but, on the contrary, it appears by the evidence on this trial that he had not been injured in any respect. It was only a few days after the horse was seized upon the execution, before the action was commenced before the justice, as appears from the complaint before the justice, and as there was nothing in the evidence upon that trial, so far as we can now see, to show that the horse had been injured, or that the defendant had sustained any special damage by the seizure and temporary detention, the question was fairly presented at the circuit, as to the nature of the claim on which the large judgment of the justice was founded.

The appellant’s counsel insists that there was no evidence given before the justice in respect to the value of the horse, upon which any judgment for such value could have been predicated, and that inasmuch as the value of the horse upon this trial is shown, without dispute, to have been $250, it is put beyond all doubt that the judgment before the justice, was not for the value. . But the case is not so clear as this in respect either to the fact or the inference. The case only shows that all the evidence there was before the justice as to the value of the horse, was the price paid for him by the defendant, which was '$100, and that this evidence as to value, was there received without objection.

This evidence, had it been objected to when offered, would probably have been ruled out, as incompetent on the question of value. • But as it was given without objection, it was some evidence upon the question, which might be referred to by the justice and acted upon in the absence of any other. It is of no consequence whatever, to the question before us, whether the actual value was $100 or $250. If the defendant recovered the value as it was made to appear on that trial, he cannot keep both the horse and the amount of the judgment. To my mind, the weight of the evidence seems to be decidedly in favor of the plaintiff’s claim, that the judgment before the justice was for the value of the horse. But whether it is so or not, it was clearly a proper question to be submitted to the jury. The judge at the circuit was right, therefore, in refusing to nonsuit the plaintiff, and the charge to the jury was correct in point of law.

The'judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Denio, Ch. J. Ingraham, J. Mullin, J.

text:
    Theoderic Gage v. Simon L. Brewster et al.

    Where a senior mortgage has been foreclosed without making a junior mortgagee party to such foreclosure suit, the 'junior mortgagee may redeem by paying the mortgage debt, principal and interest, without paying the cost of the previous foreclosure.
    The plaintiff is not affected by the foreclosure suit to which he was not a party; and stands, in relation to it, as though there had been no such suit.
    0$r the 9th of January, 1855, James Thompson, being seized of a parcel of land situate in the town of Brighton, in the county of Monroe, executed and delivered to one Amos 0. Miller a mortgage on said premises, to secure the payment of $100 and interest from the date thereof, in four equal annual payments from the same date. Miller afterwards assigned the said mortgage to the defendants. Two installments of principal and interest were paid, on said mortgage.
    At sometime prior to the 29th of February, 1856, Thompson conveyed said premises to Thomas Byder. On the last mentioned day, Byder executed and delivered to the plaintiff a mortgage on said premises and upon other land, to secure the payment of $700 in one year from the date thereof, with interest.
    On the 21th of June of the same year, said Byder executed and delivered to the plaintiff another mortgage upon the first mentioned lands and other lands, to secure .the payment of the sum of $500, in eighteen months from the date thereof, with interest. The two mortgages last mentioned were duly recorded on the days of their dates respectively.
    On the 17th of December, 1856, Byder and wife conveyed the premises first above mentioned in fee to one Martin L. Hyde, who, on the next day, conveyed them in fee to Charlotte Byder, who continued owner of the same until after the commencement of an action to foreclose the two mortgages given by Byder to the. plaintiff.
    On the 20th of March, 1858, the plaintiff commenced an action in the Supreme Court to foreclose said mortgage, making all persons interested in said premises parties, except Thompson and the defendants, who were not made parties. Such proceedings were had in said action, that on the 15th of April, 1858, judgment of foreclosure and sale was duly entered, and the premises were, in pursuance thereof, sold at auction on the 17th of J une, 1858, by the sheriff of Monroe county, and bid in by the plaintiff.
    On the 24th of April, 1858, the defendants commenced an action in the Supreme Court to foreclose the mortgage first above described, but the plaintiff was not made a party to the said action. Such proceedings were had in said action, that on the 6th of July, 1858, judgment of foreclosure and sale was duly entered, and the same was duly docketed on the 9th of the same month. The amount due at the date of the decree was $120.85, and the whole sum unpaid at that date was $220.85, besides $69.19, the costó of said action.
    On the 21st of August, 1859, plaintiff paid to defendant the sum of $222.60, under an agreement between the parties that the same should apply on the judgment in favor of defendants against Thompson and others foreclosing the oldest mortgage on said premises first above mentioned, first in payment of the costs of said action, including the costs of advertising the premises for sale, and of the sale of the same, as if a sale had actually taken place, and the balance to apply on the debt, unless the court, in an action to redeem, should decide that the plaintiff was entitled to redeem the premises from the lien of the mortgage, without, paying the costs of the foreclosure, in which event the whole sum should be applied on said mortgage. The sum paid was enough to satisfy the amount due on the mortgage only.
    The premises covered by defendants’ mortgage are worth $500 and upwards. Thompson gave a bond to secure the defendants’ debts, for which said' mortgage was given as security.
    The defendants had no actual notice of the plaintiff’s mortgages until after judgment. The plaintiff’s mortgages embraced a large amount of valuable real estate, besides the premises contained in defendants’ mortgage, and upon the sale, the plaintiff bid off the whole of the premises.
    The action was brought by the plaintiff to redeem the. defendants’ mortgage. The foregoing facts were found by the court, and judgment ordered in favor of the plaintiff, that he have leave to redeem upon payment of the costs of the foreclosure and sale by the defendants.
    The judgment was affirmed on appeal to the General Term of the seventh district, and from that 'judgment the plaintiff appeals to this court.

      W. F. Cogswell, for the appellant.

      James C. Cochron, for the respondents.
   Denio, Ch. J.

I am of opinion that the plaintiff was entitled to redeem, .by paying the mortgage, debt, principal and interest, and is- not obliged to pay the costs of the foreclosure suit commenced by the defendants against Thompson and the Ryders. The plaintiff was not affected by the foreclosure suit upon the defendants’ mortgage, to which he was not made a party. He was, therefore,- entitled to redeem, precisely as though no such action had been brought, namely, by paying the mortgage debt and interest. The costs were incurred in an action in which he was not concerned. (Vroom v. Ditmas, 4 Paige, 526.) The Supreme Court, in the present case, held that the circumstance that Ryder purchased subject to the defendants’ mortgage took the case out of the established rule. The judgment upon the foreclosure of the defendants’ mortgage contains the usual clause providing for a judgment to be docketed against the mortgagor, Thompson, for any deficiency which may remain of the mortgage debt, interest and costs, after applying the proceeds of the sale. It is said that, unless the plaintiff is compelled to pay these costs on redeeming, Thompson may be made liable to pay them, and-that the plaintiff, as the grantee of Ryder, who purchased the premises of Thompson subject to the defendants’. mortgage, ought to indemnify the latter against these costs. It seems to me that there are two answers to this position. 'Ryder did not, by taking a conveyance from Thompson subject to the mortgage, enter into a contract with! him to pay off that mortgage.' The insertion of that statement in the conveyance, if it was inserted, which is not quite certain upon the finding, served only to qualify the covenants of title, and did not oblige Ryder to pay the mortgage debt, except so far as he should think it for his advantage to do so to preserve his title to the land. He was at liberty to give up .the land, and leave Thompson to pay the mortgage. (Belmont v. Coman, 22 N. Y., 438.) Thompson, it is true, had an equity which would enable him to compel the mortgagee to exhaust his remedy against the land before resorting to him. But the defendants’ foreclosure suit was not adapted to subject the land, simply because the owner of the land was not made a party. If he had been, not only the mortgage debt, but the costs, as an incident to the Suit-for collecting the debt out of the land, ought to have been paid out of the proceeds of the sale. Again, Thompson is not in need of any indemnity. There never can be any sale under the foreclosure if the plaintiff redeems, and consequently no deficiency for which a judgment can be docketed. The mortgage debt and interest will be paid, and this will put an end to the right to sell. The- defendants have pursued a remedy which, by leaving the owner of the land outside of the proceedings, has left him at liberty to extinguish the mortgage against his premises without any regard to the pending suit, which did not concern him. The consideration that the defendant had no actual notice of the plaintiff’s mortgages was of no moment. When seeking to extinguish the equity of redemption and to bring the premises to a sale, it was his duty to ascertain to ■whom that equity of redemption belonged. It was the subject of transfer by sale or mortgage, and it had been actually mortgaged to the plaintiff, and his mortgages were on record.

I am in favor of reversing the judgment of the Supreme Court; and, as all the material facts are admitted in the pleadings, there should be a judgment declaring that the plaintiff has made a valid redemption of his premises from the lien of the defendants’ mortgage, and that such lien is extinguished; and the plaintiff should recover his costs in the Supreme Court and in this court.

Ingraham, J.

The mortgage of the defendants was not merged in the judgment as to the plaintiff, he not being a party to the foreclosure, and it being his interest that the mortgage should not merge. The same rule applies to the plaintiff’s mortgage and the foreclosure thereon. As to both these parties, the question in this case must be decided as though neither mortgage had been foreclosed. When Thompson sold to Ryder, he sold subject to the payment of his mortgage to Miller, now held by the defendants, and after that, Ryder executed the mortgages to the plaintiff.

The liability of Thompson for the costs, and the liability of Ryder to Thompson under his assumption of the mortgage of Thompson, would make Ryder liable for the costs; but I am at a loss to see any liability for’’them from Gage, because he held a second mortgage on the premises. He never assumed the payment of any mortgage, and never made any promise of any kind to Thompson. I can see no liability to Thompson, or no ground on which he could maintain an action against the plaintiff. The court below erred in this respect, and the plaintiff was entitled to redeem on payment of the mortgage and interest.

The judgment should be reversed, and judgment ordered for the plaintiff.

Mullin, J.

The only question arising on this appeal is, whether a. purchaser at a sale of premises, by virtue of a judgment of foreclosure and sale of a junior mortgage, coming to redeem from a prior mortgage which has been foreclosed, is bound to pay the costs of the foreclosure when he was not a party to such action ?

As all persons having a legal or equitable interest in premises covered by a mortgage, have, by law, a right to redeem them from the lien of all prior charges or incumbrances thereon for a term of twenty years from the accruing of such right, it becomes necessary, in order to enable those having liens on the premises, to enforce such liens, and to that end to cut off or foreclose the claims not only of the owner, but of all others having such charges or incumbrances, so that the person acquiring the title should take the same discharged of all such liens. Hence it is that in actions to foreclose mortgages, not only the mortgagor, but all persons acquiring an interest in the mortgagéd premises subsequent to the making of the mortgage, must be made parties defendant.

But it is not necessary or proper to make persons claiming title to the premises adversely to the mortgagor, parties; nor is it necessary to make those parties who acquire their interest pendente lite.

Such being the reason for making all subsequent purchasers and incumbrancers parties, it follows that the rights of all such persons as are not made parties are not affected by a judgment in an action to foreclose a lien, and their rights of redemption are as perfect as if no such action had been brought of judgment rendered.

In Vanderkemp v. Skelton (11 Paige, 28), it appeared that Hoyt conveyed certain premises in Buffalo to Kingman and Welty in 1838, taking back a mortgage for the purchase-money. On the same day K. and W. conveyed to Smith and Shelton, who gave back a mortgage for purchase-money to Kingman, one of their grantors. K. assigned that mortgage to A. C. Stevens, in December, 1835, and both mortgage and assignment were duly recorded on the 21st of that month. In February, 1836, A. C. S. assigned the mortgage to Evans, and guaranteed the collection, and the assignment was duly recorded in May, 1836. In August, 1831, Evans assigned to complainants, which assignment was recorded within two days. In Ho vein her, 1836, Hoyt filed a bill to foreclose the mortgage to him and Kingman and Welty, the mortgagors, and Shelton and Smith, their grantors, were made parties. But neither Stevens, the assignee of the second mortgage, nor Evans, who held it when suit commenced, were made parties. There was a decree and sale, and A. C. Stevens bid in the premises at the sale. Stevens, after his purchase,mortgaged the premises to Kissam, but as the subsequent proceedings do not bear on any question arising in this case, I will forbear to go into" any statement of them.

It appears by the facts stated, that the eldest mortgage was foreclosed, without maiding the holder of the junior a party, and that the assignee of such holder filed the bill to collect certain installments due on his mortgage. One of the questions presented to the chancellor was, what the effect of the foreclosure of the senior mortgage was'on the rights of the holder of the junior mortgage, the latter not being a party to the action, and he held, in a very learned and elaborate opinion: 1st. That the sale under the decree in the foreclosure suit for the foreclosure of the senior mortgage, was wholly inoperative as to the rights of the assignees of the junior mortgage. 2d. That the only right that Stevens, the purchaser at the foreclosure sale, acquired as against such assignees, was the right to the prior lien upon the premises to the extent of the money due and unpaid upon the older mortgage, in the same manner as if Hoyt had assigned that mortgage to him without foreclosure. But that as against Shelton and Smith, the persons who executed the second mortgage, and who were parties to the foreclosure suit, he acquired the equity of redemption which remained in him previous to the master’s sale. 3d. The interest that A. 0. Stevens acquired by the sale, having notice of the subsequent mortgage, was to the extent of the amount then due on the first mortgage, and the right to the equity of redemption upon paying the amount due on the second mortgage, which was a specific lien on the premises. In Vroom v. Ditmas (4 Paige, 526), the chancellor decided that the effect of a statute foreclosure is to transfer to the purchaser the right of the mortgagee to the extent of his claim or interest in the mortgaged premises, for the security of his debt, and also to transfer to the purchaser so much of the equity of redemption as is not vested in subsequent mortgagees, nor bound by the lien of subsequent judgments.

The same principle was asserted in Benedict v. Gilman (4 Paige, 58). A sale by virtue of a power contained in a mortgage, made pursuant to the statute (3 R. S., 547), by advertisement, was declared by the statute to be equivalent to a foreclosure and sale under the decree of a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them by any title subsequent to such mortgage; but the rights of all other persons, accruing before the sale, were not to be prejudiced by such sale, nor their rights or interests in any way affected.

It would seem to follow, that the purchaser under a judgment of foreclosure acquired no greater rights against subsequent incumbrancers and purchasers, not made parties to the action, than did the purchaser at a sale after advertisement pursuant to the statute, as against those who by the statute were declared not foreclosed by proceedings under it. The chancellor said, in Vanderkemp v. Shelton (supra), that the' decree of foreclosure was wholly inoperative against a subsequent incumbrancer not made a party; and such was the effect of a sale under a statute foreclosure. The rights and remedies in the two cases of the several parties interested were identical after a sale.

In Brainard v. Cooper (10 N. Y., 356), Gardiner,, J., delivered an opinion, in which three other judges of this court concurred, in which he shows by authority that the foreclosure of a mortgage by action is wholly inoperative as to an existing judgment creditor not a party to the suit. The judgment in that case was affirmed upon an equal division, after a second reargument, and the case is not therefore authoritative, except so far as the reasoning of the learned judge commends itself to us by its cogency and soundness.

Let us now proceed to inquire what a party entitled to redeem acquires on the redemption of mortgaged premises. By the mortgage, the mortgagor in form conveys whatever estate he has in the land. In reality, it is but a security for a debt. In order to place him in the condition in which he stood before the mortgage was given, he must have .either a reconveyance of the premises or a satisfaction of the mortgage. The usual decree for redemption in his case is for a reconveyance. (See Precedents, 2 Barb. Ch. Pr., 630; id., 199.)

When a subsequent incumbrancer comes to redeem, the relief to which he is entitled will depend upon whether the prior mortgage has been foreclosed by a decree and a sale under it. If it has, the purchaser has acquired a title to the premises, and that title must be conveyed to him, in order that he may stahd unaffected by proceedings to which he was not a party. If there has not been a decree, he is entitled only to the mortgage; if there has been a decree, he is entitled to it. Because the mortgage is gone, the debt is merged in the decree; and, hence, an assignment of the mortgage would be of no value to him, as he' could not use it to reimburse himself, and the mortgagee has before sale no other or higher interest than he had under the mortgage. And to permit another action to foreclose the mortgage, would be 'worse than folly. (Pardee v. Van Auken, 3 Barb., 534; Opinion of Gardiner, J., in Brainard v. Cooper, supra.)

In The People v. Beebe (1 Barb. S. C., 379), it was held, that a decree of foreclosure extinguishes the mortgage, although not docketed, and after a sale on the judgment of foreclosure, neither the mortgage nor decree is any longer a lien on the premises.

It would seem to follow, that, notwithstanding the subsequent incumbrancer is not affected by a foreclosure to which he is not a party, yet, coming to redeem, he necessarily derives a benefit from the costs incurred in foreclosing the mortgage he seeks to redeem. If a suit has been commenced, he may continue it. If it has gone to a judgment, he necessarily takes it; and if there has been a sale,' he gets whatever title the purchaser acquired through the sale.

The next and only remaining question is, how much the creditor, coming to redeem, must pay, in order to entitle himself to redeem. All agree that he must pay the amount due on the prior mortgage. But it is denied that he must pay the costs of the action of foreclosure, to which he was not a party, for the reason that he derives no benefit from it. I have endeavored to show that he does derive a benefit from an action to foreclose; and he is, therefore, bound to pay the costs. But cases are cited which, it is claimed, have settled the question of liability to pay costs—holding that there is no such liability.

The first ease to which we are referred is Benedict v. Gilman (supra). In this case the chancellor did hold that a subsequent incumbrancer, coming to redeem from a foreclosure sale under the statute, is not bound to pay the costs of such foreclosure; that such a purchaser is entitled to no more than he would have been if he had taken an assignment of the mortgage. And the reason of the decision is, that the subsequent incumbrancer, by redeeming, derives no benefit from the foreclosure. In this, I think, the learned chancellor is mistaken. By the very terms of the statute, the mortgagor and his heirs and representatives were foreclosed as effectually as they would be by a decree in equity. The purchaser has, therefore, acquired the mortgagor’s equity of redemption, subject to the liens thereon previous to the mortgage foreclosed. He has acquired a title. The sale has, as against the mortgagor, satisfied the debt, and the lien is utterly gone. The redeeming creditor is, therefore, entitled to a conveyance from the purchaser, and he thereby obtains the benefit of the proceedings to foreclose.

The chancellor, in Vroom v. Ditmas, reiterated his decision in Benedict v. Gilman, and assigns for it the same reason, to wit, that the foreclosure and sale were wholly inoperative. But, with the most profound respect, I insist that this is not the true test of the liability to pay the costs of the foreclosure. It should be, whether, by the redemption, he will derive any benefit from them. And it seems to me entirely clear that the redeeming creditor obtains the same benefit by redeeming from a sale on a statute foreclosure that he would from a foreclosure in equity, where himself and other subsequent incumbrancers are not made parties. In each case the equity of redemption has been acquired, subject, it is true, to the subsequent liens. But the legal title has been acquired, and the redeeming creditor gets it.

In Robertson v. Ryan (25 N. Y., 320), the mortgagor was not made a party, and the legal title was not transferred, and neither the purchaser nor the redeeming creditor was any better off than they would have been by an assignment of the mortgage merely. I very much doubt whether any benefit whatever results from such an abortive attempt at foreclosure; and there was no reason in that case why the creditor should be required to pay costs.

It was held in Lomax v. Hide (2 Verm., 185), that the plaintiff, a second mortgagee, coming to redeem, the defendant, who had been at great expense in lawsuits to foreclose, the mortgagor, and otherwise in relation to the estate, was bound to pay, not the taxable costs only, but all the costs and expenses of the litigation. (See 6 id., 601; 2 Pow. on Mort., 1067,1068.)

In any view of the case, it seems to me the plaintiff was bound to pay the costs of the foreclosure.

The judgment should, therefore, be affirmed, with costs.

Denio, Ch. J., Selden, Wright, Davies, and Ingraham, JJ., were for reversal; Mollin and Johnson, JJ., for affirmance ; Hogeboom, J., did not vote.

Judgment affirmed.


author:
Wright, J. Ingraham, J.
      Hogeboom, J.

text:
    Barbara Klein and Joseph Myer, Plaintiffs in Error, v. The People, Defendants in Error.
    If the acts of the prisoners committing the offense are a part of one and the same transaction, and the offense in law admits of different degrees, they may be convicted of different degrees, though jointly indicted for the same offense.
    This rule applies, except in indictments for offenses necessarily joint, as, for a conspiracy, riot, etc.
    Where two are jointly indicted for committing a larceny, and one of them pleads guilty of an attempt to commit a larceny, and is sentenced, the other defendant may be lawfully tried for the larceny, and, on conviction, be sentenced to suffer the penalty of the law therefor.
    Error to the Supreme Court. It appears from the record (which is all that is contained in the error hook) that Barbara Klein and Joseph Myer, the plaintiffs in error, were indicted, in the Mew York Oyer and Terminer, in December, 1862, for stealing three shawls of the value of one hundred and thirty dollars, the property of one Thomas Le Boutilier. Both plead not guilty, and the indictment was ordered to the General Sessions. At a Court of General Sessions, held on the 12th of December following, Klein withdrew her plea of not guilty to said indictment for grand larceny, and pleaded thereto guilty of an attempt to commit grand larceny, and was immediately sentenced by the court to be imprisoned in the penitentiary of the city of Mew York for the term of one year. Myer was then tried by a jury and convicted of grand larceny, and sentenced. ■
    Klein and Myer brought error to the Supreme Court, where the judgment of the Court of General Sessions was affirmed. They now bring error to this court.

      S. H. Stuart, for the plaintiffs in error.

      A. Oakey Hall, for the People.
    This suit brings up for discussion questions constantly raised at nisi ¡prims by various counsel, and as constantly ruled against them.

      1. Can defendants, jointly indicted, be severally convicted of different grades of an offense, or of main offense, and its moiety of subdivision, <fc°c. ?
    2. Can there be a conviction for an attempt to commit a crime under an indictment for a main offense that has no degrees?
    The questions are not here upon bill of exceptions, but solely upon a motion in arrest.
    Klein, a woman, and Myer, a man, were jointly indicted for a grand larceny. Klein pleaded guilty of an attempt to commit grand larceny, and was immediately sentenced. Myer then was tried, and convicted of grand larceny, and sentenced.
    I. The plea of Klein was legal.
    I. It is true the statute (3 R. S., marg. p. 702, § 30), refers to an offense consisting of degrees, but then there survives the common law rule, permitting convictions for attempts, or constituent misdemeanors under indictments for the greater offense.
    When the statute created degrees to offenses, it had, of course, for safety, to apply by enactment the common law rule to the statutory additions.
    Thus, in offenses consisting of degrees, the right to convict of an attempt takes its origin in the statute.
    But in offenses without degree, and which were known to the common law, that right survives from the common law. (People v. Jackson, 3 Hill, 92; People v. Cobel, 26 N. Y.)
    Hence, Klein’s plea of guilty of an attempt was proper, under the indictment. It was for a felony. Every attempt to commit a felony was a misdemeanor at common law (from 1 Hawkins, P. 0., 55, to 2 Wharton, § 2696), and is punished as a minor felony in our State. Therefore, the indictment in question for the felony included the attempt and the minor offense whereof Klein pleaded.
    II. Myer’s conviction was legal.
    1. Klein, who had been his co-defendant, was no longer so when he was put on trial, because she had been sentenced. Judgment was perfect against her. Myer then stood just as much alone on the record as if the people had previously, by a nolle prosequi, ended the record against Klein. So that no question arising upon the joinder can be legitimately discused. (People v. McIntyre, 1 Parker, 371; People v. Donnelly, 2 id., 82.)
    The cases wherein doubts have been expressed regarding the conviction of one joint defendant in a high felony, whilst another joint defendant has been convicted of still another felony (each felony being pertinent to the indictments), have arisen in a different mode from that governing the present one. Either the prisoners have been tried without severance, or the crime (like conspiracy) was necessarily of a joint character and substance, or no judgment had passed upon the conviction of the first one tried, so that it left him still a joint defendant. Without, of course, knowing the cases that may be cited against the people, we predict that they will range under some one of these exceptional heads.
    One or two defendants cannot he a witness for another. (Donnelly, supra.) Why ? Because they are jointly indicted. But acquit, or convict, or nolle pros., and he can he a witness. Why? Because the joint interest has ceased. By parity of reasoning, Myer’s joint interest ceased when Klein was convicted and sentenced.
    2. These questions do not arise upon objections taken during trial, but upon the bare record. And the court, even if Klein continued to he a joint defendant with Myer, cannot decide as matter of law that the latter only committed the offense to which the former had been permitted to plead and he sentenced upon.
    Indeed, as matter of law, where the question was duly taken during trial, and where there was not only joinder in indictment, but joint arraignment, and joint trial, and joint verdict, the right to distinction by verdict between joint defendants has been upheld..
    Clearly, one joint defendant can he convicted and another acquitted. Or, one may he acquitted first and the other afterward convicted. And this, whether there he joinder in trial, as at common law, or severance, as under statutes.
    In July, 1855, at the Circuit Court of Marshall county, in Mississippi, four men were jointly indicted, and jointly tried for murder. One was convicted of murder, one of manslaughter, second degree, another of manslaughter, fourth degree, and the fourth was acquitted. Said the court on appeal: “It is no ground to arrest the judgment, that three defendants jomit/y tried for murder were convicted by the jury of different degrees of homicide.”
    In United States v. Harding (Wallace, 127), the marginal note (before Grier and Kane, J J.), is: “ Where two or more defendants are jointly charged in the same indictment with murder, it is competent for the jury to find one guilty of murder, and another of manslaughter;. and on such a verdict being rendered, it will not be disturbed by the court as irregular.”
    3. The court can very readily conjecture for itself how facts of a trial might show—one defendant only being upon trial—that he consummated the transaction, whilst a joint defendant in the indictment was intercepted in it.
    The court can also readily conjecture for itself other facts which would totally negate any but joint acts.
    If a prosecutor try two for joint acts, he must undoubtedly prove joint acts.
    If, by reason of severance, or by reasons of nolle proseguí judgment, or by reason of conviction by plea or by. trial, or by reason of acquittal, the j'oint pleading is severed, and only one defendant is on trial, the prosecutor is not trying a joint act, and he is not bound to prove it to be a joint act.

      4. But Myer joined issue on the main charge by his plea. When tried he was sole defendant.
    It is to be presumed the evidence showed him guilty of the whole indictment.
    5. Had Myer been first tried and convicted, we can appreciate, at least, the ingenuity of a point which might have been raised for Klein under section 29 of 3 Revised Statutes, (marg. p. 702), viz., that the law having settled that Myer perpetrated the crime, it forbade Klein from being found guilty of the attempt.
    The point might be ingenious, yet not salutary to the client. This court not long since listened to a counsel who practically demanded that his client should be hung, because a judge had unconstitutionally sentenced that client to be imprisoned for life!
    The statute was this: “Ho person shall be convicted of an attempt to commit an offense when it shall appea/r that the offense attempted was perpetrated by such person at the time of such assault, or in pursuance of such attempt.”
    In Klein’s case it “appeared” (by her own confession), that only an attempt had been committed by “ such person,” i. e., herself! Her plea settles her case.
    In Myer’s case it “appeared” (by the verdict of a jury), that the full crime had been “ perpetrated ” by “ such person,” i. e., himself.
    ITT. The conviction and judgment of the General Term should be affirmed.
   Wright, J.

This case is before us on the bare record, and the only question that can possibly arise is as to the legality of the conviction of Myer, one of the accused. It appears that Klein and Myer were jointly indicted for a grand larceny. Klein pleaded guilty of an attempt to commit grand larceny, and was immediately sentenced. Myer then was tried, and convicted of grand larceny, and sentenced. There can be no doubt that Klein, though indicted for a larceny, was legally convicted, on her own confession, of an attempt to commit the offense; and this is not now questioned by her counsel. But it is insisted that Klein and Myer being jointly indicted for the same larceny, after the former had been convicted of an attempt to commit it, the latter could not be legally tried and convicted of the full crime. Why not? The defendants, it is true, had been jointly charged in the indictment with committing a felony. Klein, on being placed on trial, was, by her own confession, convicted of an attempt to commit the offense, and judgment passed against her. Myer then stood alone on the record, as much so as if the People had, by a nolle ¡prosequi, ended the record against her who had been his co-defendant. He had joined issue on the main charge by his plea, and when tried was sole defendant. It was clearly competent to try the issue, and if the evidence showed him guilty of the larceny, to convict him; and this without regard to the prior disposition of the case of his co-defendant in the indictment. It cannot be questioned that, being first tried, if the jury had acquitted her altogether, the verdict would in any way have affected the legality of the subsequent trial and conviction of Myer; nor could his case be legally affected by even a prior erroneous verdict against her. The conviction of Klein of an attempt to commit the larceny charged was no judicial determination of the offense that Myer had committed. Whether he had committed any offense remained to be tried, or whether only the offense of which his co-defendant in the indictment had been convicted.

The record is all that is before us, and that discloses that a man and woman were jointly indicted for a larceny. The woman was first tried, and convicted, on her own confession, of an attempt to commit the larceny, and judgment forthwith followed. The man was then tried by a jury and convicted of the larceny. There was no error here, even if the woman continued after sentence to be a joint defendant with the man, unless we can decide, as matter of law (which we cannot), that the latter only committed the offense to which the former had been permitted to plead and be sentenced upon.

The judgment of the Supreme Court should be affirmed. ■

Ingraham, J.

The prisoner was indicted with Barbara Klein for grand larceny. When the case came on for trial, Klein pleaded guilty of an attempt to commit grand larceny. Myer was then tried and found guilty. The prisoner now moves in arrest of judgment, on the ground that both defendants must be convicted of the same offense, and not of different grades of offense. There can bé no doubt that one defendant might have been acquitted and the other convicted, and such conviction have been good. And it has b'een held that where two are charged with a joint offense, either may be found guilty, (R. v. Hempstead, R. & R., 344.) But where persons are jointly indicted for a joint offense, they cannot be convicted of separate offenses; and if the act is indivisible, such as conspiracy or riots, then one cannot be convicted without the other. (Stephens v. State, 14 Ohio, 388; State v. McD., 6 Bennet, 272; Addis., 334.) But, except in indictments for offenses necessarily joint, joint defendants may be convicted of different grades (Shorese v. Caw, 5 Barr., 83; R. v. Butterworth, R. & R., 520); and they may be convicted of different degrees of criminality in the same offense, where the defendants may act different parts in the same transaction. Thus, where two defendants are charged with murder in the same indictment, the jury may find one guilty of murder and another of manslaughter. (United States v. Harding, 1 Wall., Jun., 127; Mack v. State, 32 Miss., 406.) So in a charge of burglary: one may be convicted of burglary and another of grand larceny, where the first one broke open the house, and the other afterwards entered, and the two committed the larceny. (Russ. & Ry. C. C., 520.)

In the present case, the prisoner Klein pleaded guilty of an attempt to commit grand larceny. This she might have done without necessarily being proven guilty of the further offense. After the plea was put in, she was considered as if she had been tried separately and acquitted, or convicted of a lesser grade. It did not prevent the trial of the prisoner Hyer, nor his conviction of the whole charge, any more than if both had been indicted for murder, and one on a separate trial had been convicted of manslaughter; or, in an indictment for burglary, if one had been convicted of larceny, the other might afterwards be convicted of burglary.

I understand the rule to be, if both are convicted of offenses in the same continuing transaction, they may be convicted of different degrees, if the prisoners take different parts in the commission of the same offense.

The prisoner was properly convicted, and the judgment should be affirmed.

Hogeboom, J.

The plaintiffs in error were jointly indicted in New York for the crime of grand larceny, in an indictment containing a single count. Klein pleaded guilty of an attempt to commit grand larceny, and was thereupon sentenced, and Myer at the same time was tried and convicted of the crime of grand larceny and sentenced to the State prison. This appears by the record of judgment. There is no case or bill of exceptions, and the proceedings on the trial are not before us. The writ of error is brought on behalf of Myer, to reverse the judgment, upon the ground that the offense, whatever it was, was the same as to both parties; that the conviction of Klein for an attempt to commit the crime showed what the grade of it was, and that the subsequent conviction of Myer for the perfected crime of larceny was necessarily illegal. I think there are several answers to this position.

1. It does not appear that the conviction of Myer was subsequent to the conviction of Klein. The only reason to infer it was, is that it is subsequent in the order of statement in the record. It does not follow from this that such was the order of their conviction, nor that they were not, as they are stated to be in the record, simultaneous.

2. But assuming the conviction of Klein to have been first had, and subsequently that of Myer, I see no sufficient reason why both are not legal. It is true the crime is charged as the same on the part of both, but it would not necessarily appear so in proof, nor be so in fact, and there would be no legal obstacle to convicting the one and acquitting the other by the verdict of the jury. One might be guilty, and the other innocent; and the guilty would not escape because the innocent was acquitted on an indictment charging a joint offense. The crime is in its nature several, and not joint, though two may participate in the same offense, and be jointly indicted therefor. If it be granted that one may be convicted and the other acquitted under a joint indictment, I see no reason why one may not be convicted of the perfected crime, and the other of an attempt to commit the crime. The verdict might, if the facts justified it, properly declare such a result, and, if so, why might not the plea of the one be accepted for the minor offense, and the conviction of the other be had for the greater crime ? I understand the reason urged to be, that they must have committed the same crime, and the prior conviction of Klein shows that crime to have been an attempt to commit grand larceny, and, hence, that the crime itself, as declared by law, could not have been committed. The answer is, it is not certain, nor legally necessary to support the conviction, that they should have been guilty of the same offense. As a matter of pleading, it was necessary so to charge it; as a matter of proof, under such a pleading, it might be different. We can well conceive that both might have been concerned in the same transaction, and yet that one committed the perfected crime and the other was guilty only of an attempt to commit it. With this record, we must assume such to have been the case. The facts show it, and there is no evidence to the contrary. Hence, there is no legal inconsistency in the convictions which have been had.

3. But, suppose the inconsistency to exist, which party is to have the benefit of it ? In which case was the error committed ? The prior conviction of Klein was not pleaded, and, as we must assume, was not given in evidence, on the trial of Myer. There was nothing there to show that the actual crime was of an inferior grade, and nothing exhibiting any legal error. Ho such point was made on the trial. Ho question was made as to the grade of the offense, and there was absolutely nothing to mitigate the character of the offense, or to indicate doubt of the defendant’s guilt of the crime with which he stood charged. What, then, were the court and the jury to do, but to convict and sentence him ? I think, therefore, the point now taken by the defendant did not arise.

4. When Myer was tried, there was, in fact, no other defendant to be tried, and no other .crime to be proved, than one against him. The other defendant had been convicted and sentenced, and practically disappeared from the record. The trial proceeded against Myer alone. Although the name of another party appeared in the indictment, there was nothing to show what had become of her, or, if there was, that she had been legally withdrawn from the record. We have no case or bill of exceptions, and I do not think the facts are before us necessary to raise the point on which the plaintiff in error relies. So far as the record is in evidence, it does not show that there was error in the defendant’s conviction; and if either is to escape, it should not be the greater criminal.

5. There are only two adjudications cited by the counsel for the prisoner, and those are not parallel to the present. In the case of The King v. Hearnsted and Hudson (Russ. & Ryan, 343), there was a joint indictment against two defendants for stealing twenty-seven penknives. The jury found one defendant guilty of stealing twenty-five of them, and the other of stealing the other two, and, practically, each of them not concerned in the larceny of those of which they were not convicted. The offenses being distinct, and not relating to the same transaction, and the punishment different, it was held that judgment could not be pronounced against either without a nolle proseguí as to the other.

In this case the transaction as to both is the same; both participated in it, but with different degrees of guilt constituting different grades of the offense.

The same difficulty meets us in the other case cited, that of Taunton and Henry (2 Moody, 118). The indictment was a joint one for robbery by violence. In that offense Taunton did not participate, although he acted in aid of Henry in the commission of a previous offense, attempted robbery by intimidation, and it was held (precisely how the question arose is - not stated), that the verdict against Taunton must be set aside as improperly joined with the other party, leaving it to stand against the greater criminal.

In the present case, as to such criminal, I think the same course should be pursued, and the judgment of the Supreme ■Court affirmed.

All concur in affirming the judgment.

Judgment affirmed.


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

text:
    Samuel N. Dodge v. Juliana Gardiner.
    In the construction of a writing, the meaning of particular terms used, as “general opposition,” may be sought for in the light of concomitant circumstances.
    Where the “general opposition” to be made had for its object the defeating of an improvement in the city of New York, under the act of April 20, 1839 (ch. 209), and was to be resisted by a majority of the parties interested, &c., to be a successful opposition, the term “ general opposition ” would not embrace any litigation which was peculiar to any one or more of the essential parties, less than the whole.
    Where one of the resisting parties signs a paper to pay any amount within a specified sum toward raising a larger sum as a fund to prosecute such “general opposition,” and no further sum or sums are contributed toward such fund, the contract of the party does not become operative, unless the contemplated fund is raised.
    The facts of the case are sufficiently stated by Dentó, Oh. J., in his opinion.

      Robert A. Dodge, for the appellant.

      Amasa J. Parker, for the respondent.
   Denio, Ch. J.

This action was brought to recover compensation for certain expenditures of the plaintiff, alleged to have been made at the defendant’s request and for her benefit. The plaintiff and defendant were respectively owners of real estate situated on Chatham Square, and in its vicinity, in the city of Hew York; and portions of the lots owned by them were taken and appropriated for the purpose of extending the Bowery from Chatham Square to Franklin Square; and they were respectively assessed for benefit to the portions of their lots not appropriated. A large number of other owners of real estate, embraced within the scope of the improvement, were similarly affected. Commissioners of estimate and assessment had been appointed, and had made their report, and deposited the abstract of it, as required by law, about the 1st day of December, 1854; and on that day they gave notice of a motion for confirmation, to be made on the 17th day of February thereafter, in the Supreme Court. Among the items composing the aggregate amount to be assessed was the commissioners’ bill of costs and expenses, amounting to $22,597. The defendant’s estimate, for her land appropriated, was $62,990, and the sum assessed against her for benefit, for property not taken, was $4,847. The plaintiff, the defendant, and many other of the persons interested, were dissatisfied with the report; and the plaintiff and the defendant separately employed counsel to attend to their respective interests, and to oppose the confirmation of the report; the plaintiff’s counsel being Hr. Bobert Dodge, a principal witness in the case. His efforts were principally directed to opposing the taxation of the costs, and they resulted in reducing the bill by the sum of $2,500. The defendant’s grievance was the alleged undervaluation of her lots taken for the proposed improvement; and to correct this, affidavits and estimates were prepared by her separate attorney, and the questions arising upon them were argued by counsel employed and paid by her. Besides these-separate grounds of opposition, the defendant and many other parties, including the plaintiff, were desirous of defeating the improvement altogether. The act of April 20, 1839 (Laws of 1839, ch. 209), provides that if, upon the hearing of an application for the confirmation of the report of the commissioners of estimate and assessment, persons who appear by the report to be interested, either by assessment for benefit or award of damages, to the amount of a majority of the aggregate of all the assessments and awards, shall appear and object to further proceedings upon the report, the court shall order the same to be discontinued, and the same shall thenceforth be discontinued. The objections are to be in writing, and to be verified by the oath of the objecting party. The plaintiff undertook to defeat the improvement in that way, and for that purpose employed a person to see the parties interested and obtain their dissent in proper form; but after incurring considerable expense in that way, the effort was found ineffectual, as a majority could not be procured to object. While this attempt, was being prosecuted, the defendant came to the office of the plaintiff’s counsel, and after consulting with him respecting the progress of the opposition, as a person having a common interest, she signed a paper prepared hy him in these words: “ Supreme Court. In the matter of the opening of the Bowery, &e. Yew York, January 30, 1855. Mr. Samuel Y. Dodge [the plaintiff] can call upon me to the extent of four hundred dollars at any time, and in any amount, as may be required for the opposition in the above matter; the above sum of four hundred dollars being intended to be my contribution to the fund for the general opposition herein. Juliana Gardiner.” The plaintiff produced and gave proof of a bill of expenses,, for moneys paid to counsel and attorneys, and for copying the commissioners’ abstract and procuring objectors, amounting to $469.20, the greater part of which was for the opposition to the allowance of the commissioners’ bill of costs and expenses. The point principally litigated upon the evidence, on the trial before Mr. A. C. Bradley as a referee, was as to the tenor and effect of certain conversations between the defendant and Mr. Dodge, the plaintiff’s counsel, prior to and at the time of signing the above mentioned paper; the plaintiff attempting to prove that the proceedings taken by him in opposing the taxation and procuring the objections, &e., were recognized by her as things done at her request and for her benefit. This she, as a witness on her own behalf, positively denied; and she further testified that the paper was signed for the purpose of making up a fund of $2,000 or $2,500, to which several persons were to contribute, for an opposition to be made on behalf of a majority of the parties affected, to the improvement as an entirety, and to prevent its being consummated; it being contemplated, according to some of the witnesses, to take the questions to the Oourt of Appeals. Yo other parties appeared to have signed, or in any way to have entered into, similar undertakings, though it was contemplated that the plaintiff, whose interest was less than the defendant’s, should contribute to the amount of one hundred dollars.

The plaintiff claimed to recover against the defendant $400 of the $469.20, and interest.

The referee reported in favor of the defendant. His conclusions of fact upon the evidence were, in addition to matters not disputed, as follows: 1. That the opposition to the taxation of the costs was undertaken and conducted by the plaintiff on his own behalf, and by means of his own attorney and counsel, and not at the instance or request of the defendant. 2. That the canvassing to obtain objectors was done by the plaintiff or his agents, on his own motion, and not at the instance and request of the defendant, and that the defendant became an objecting party at the plaintiff’s request. 3. That having failed to obtain the requisite majority of objecting parties, the plaintiff did not make any objection to the confirmation of the commissioners’ report, other than such objections as were connected with the question of the taxation of the costs, and that the defendant did not object to the allowance of the costs claimed. 4. That the defendant’s grievance was the alleged undervaluation of her real estate appropriated, and that she employed and paid counsel of her own to present her objections in that respect to the court. 5. That the paper signed by the defendant was executed during the pendency of the several forms of opposition above mentioned, and before the decision of the court upon them; and that, on the occasion of its execution, the plaintiff’s counsel stated to the defendant, in substance, that measures were on foot to produce a general opposition to the confirmation of the report, and, for that purpose, a sum of $2,000, or $2,500, would be necessary, of which the plaintiff would subscribe $100, and other parties interested would probably subscribe liberally $ that the plaintiff was then fighting against the costs single-handed, and urged her to contribute to the expenses of a concerted oppositionthat the defendant signed the paper in order to contribute to a fund for a general opposition, in concert with the other parties objecting, and not for the purpose of defraying the whole or any part of plaintiff’s expenses in the acts or proceedings by him instituted as above stated; that neither the plaintiff nor any other party subscribed any sum, and that no general opposition was made, and the whole aim and purpose of the defendant’s subscription was eonsequently defeated. 6. That by far the greater portion of the bill of $469.20 was incurred by the plaintiff in opposing the taxation of costs, a measure to which the defendant objected.

As matter of law, the referee decided that the written instrument was without consideration, and that there was nothing in the pleadings and proofs to entitle the plaintiff to recover. He accordingly decided in favor of the defendant. The plaintiff excepted on all the points stated.

A considerable part of the printed argument submitted on behalf of the plaintiff, who appeals from this judgment, is directed to an attempt to show that the conclusions of the referee were erroneous in matters of fact; but it is obvious that we must consider the case as though they were accurate deductions from the evidence; and I see no reason to doubt their substantial correctness, if we were reviewing the case upon the evidence.

The principal, if not the only, question in the case, as now presented, arises upon the construction of the paper. That must be judged of by its terms, though the concomitant circumstances may be looked at in fixing the meaning of its language. What was the meaning of the “general opposition” mentioned in it ? It would not, of course, embrace any litigation which was péculiar to any one or more, less than the whole, of the parties; and this is not contended. It is said that it indicated some system of opposition which should look to defeating the improvement altogether. It no doubt embraced this; but it is not clear to my mind that it did not also include any species of opposition which, though it did not put an end to the proceeding, would, if successful, reduce the burden upon the several parties assessed. The effort to reduce the costs was of that character, and would, if successful, and so far as it was successful, have that tendency. The fact found, that, in her oral communications, the defendant expressed herself opposed to that form of opposition, does not seem to me an answer to that view. It had been adopted and prosecuted by the plaintiff, with her knowledge. It falls within the meaning of a general opposition, as I have interpreted it, and I think is embraced within the purposes of the fund which was to be raised. It is implied by the instrument that the plaintiff was to judge of the manner of conducting the opposition, so that it should be for general and not for . separate benefit. The obtaining the written objections of parties who were disposed to object, was clearly within the intention of the paper. It was not limited to collecting the names of the parties who were to join in the opposition; for if the requisite amount of objecting interests had been procured, that would itself have defeated the improvement, and nothing further need then be done.

But I am of opinion that the undertaking never became an operative contract, for the reason that no such fund as was contemplated by it was ever raised. The paper clearly implies that the defendant was to be one of several contributors to a fund of a larger amount than the defendant’s contribution. Parol evidence was admissible to show the purposes of that fund, and, in a general way, the amount which it was expected would be needed, and the parties who were expected to contribute; and there was no objection to the evidence given on these points. The defendant was not to pay individually the plaintiff’s expenses of the opposition which he was conducting, but was only to be one of the contributing parties among those who had similar interests, and they were to join in making up the expected fund. I do not say that it was necessary for all the dissatisfied parties to have become bound to contribute. If any others had entered into obligations like that of the defendant, it might then have been a question whether the combination had become sufficiently extensive to satisfy the terms and intention of the defendant’s undertaking. But when it was found that no one else joined in raising the contemplated fund, and that no such fund was ever provided for, it is demonstrated that her promise never became operative. The four hundred dollars mentioned in the paper were inserted as a limit beyond which she should not be obliged to pay, and not as an absolute sum to which she bound herself. It is upon this ground, namely, that the obligation was inchoate, and contemplated further similar engagements by other parties, in order to become operative, which were never obtained, that I am for affirming the judgment entered upon the referee’s report.

Hogeboom, J.

This action is brought to recover §400 upon an instrument signed by the defendant, agreeing to pay that sum to the plaintiff as her contribution to the fund for the general opposition to the confirmation of the report of the commissioners of estimate and assessment, in the matter of the opening of the Bowery in the city of blew York. The defense is that no such opposition was made, no fund contributed for that purpose, and hence, that no liability was incurred by the defendant. This defense is sustained both in regard to the facts and the law of the case by the referee, and by the Supreme Court. The referee finds that there was opposition to the confirmation of the report of the commissioners, both on the part of the plaintiff and of the defendant, but separately and not jointly, and at their individual expense and for their individual benefit, and not by way of general opposition in behalf of property holders associated for the purpose of making such opposition. These facts are not .open to controversy here, and I think dispose of „the case adversely to the plaintiff. The instrument prosecuted is not a promissory note, does not express or import a consideration on its face without the aid of extrinsic evidence, and such evidence is not produced. I think there is an insuperable barrier to the plaintiff’s recovery in the conclusions to which the' referee has arrived on the questions of fact. I concur in the reasons presented in the opinion of Hr. Justice Bbowx, in the Supreme Court, for the affirmance of the judgment, and do not deem it necessary to add anything further in support of his conclusions.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Mullin, J.

text:
    Alfred Booth, Respondent, v. Jeremiah S. Bunce et al., Appellants.
    Where B., as judgment creditor of a corporation of which M. was the managing member, had levied his execution upon what he alleged to be the property thereof, and B. was sued by one holding such property as purchaser at sheriff’s sale under an execution against the property of a former corporation of which M. was also a managing member, claiming that said property had been fraudulently transferred by such former corporation to the latter, for the purpose of defrauding the creditors of the former, Held,

    That it was error for the court to instruct the jury that, if they believed B. had acquiesced in the use and possession of the property, as his own, by M., after the formation of the latter corporation, B. would be estopped from setting up that it was the property of the latter corporation.

      It seems, a defendant cannot entitle himself to a nonsuit, unless he first point out the defects in the plaintiff’s case entitling him to such nonsuit.
    Appeal from a judgment in favor of the plaintiff, and from an order refusing a new trial at the General Term of the Supreme Court of the second district.
    In 1854, William Montgomery, William Garrahrant and Isaac Beeve, were partners, under the name of William Montgomery & Co., in the manufacture of steam engines and machinery, at Yonkers, Westchester county. On the 1st January, 1855, Beeve sold out his interest in the co-partnership to his partners, taking their notes for the price. These notes were secured by mortgage on the partnership property, which mortgage was duly filed. ^ Subsequently said notes and mortgage were transferred to the plaintiff. The plaintiff brought an action against Montgomery and Garrabrant, on two of the said notes, of $965.32 each, and recovered judgment thereon for the sum of $2,268.38, which judgment was duly filed and docketed in the office of the clerk of Westchester county, on 17th December, 1859. An execution was issued on said judgment, to the sheriff of Westchester, who levied on the engine in question, in the machine shop formerly occupied by William Montgomery & Co., at Yonkers. On the 22d December, 1859, and subsequently, and on the 18th January, 1860, .the sheriff sold said engine by virtue of said execution, and the same was purchased by the plaintiff. On the 5th April, 1860, it was sent, by directions of the plaintiff, to 222 Pearl street, to be sold, and on the same day it was seized by virtue of an execution, in favor of the defendants, Bunce, Esler & Cobb, against the Yew York Steam Saw-mill and Machine Company, for which taking this action is brought.
    It was proved by the defendants, that on the 20th October, 1857, a corporation was duly organized, under the general law regulating the formation of mining and other corporations. The certificate was signed by William Montgomery, Jesse M. Emerson, George D. Lund, Asahel R. Jones and Appleton Oaksmith, and the same was filed on the same day, in the office of the secretary of State, and a duplicate thereof in the office of the clerk of the city and county of Yew York. On the 21st October, 1857, William Montgomery and George D. Lund, who had become a partner in the firm prior to 4th July, 1856, sold and transferred to said corporation all the tools, machinery, &c., then owned by the firm of William Montgomery & Co., of which they were members, and thereafter the said corporation carried on the same kind of business previously carried on by said firm of William Montgomery & Co. Said Montgomery was president of the corporation.
    The engine in question was manufactured by said corporation in 1859.
    After the organization of said corporation, it became indebted to the defendants, Bunce, Esler & Cohb, for property furnished by them to said corporation, for which an action was brought and judgment recovered thereon, on 31st March, 1860, for the sum of $2,513.58. On this judgment an execution was issued to the sheriff of the city and county of Yew York, by virtue of which he levied on the engine in question, at 222 Pearl street, in said city, and on the 5th April, 1860, sold the same to the defendants, McLeod and Windle.
    On the trial, the plaintiff insisted and gave evidence tending to show that the corporation was organized and the property of the firm of William Montgomery & Co. sold and transferred to said corporation, and the, business thereof thereafter carried on for the purpose and with the intent of cheating and defrauding the creditors of said firm.
    On the first trial of this cause the plaintiff had a verdict, on which judgment was entered, and on appeal the said judgment was reversed’ by the General Term of the second district, and a new trial ordered with costs to abide the event.
    The General Term reversed the judgment on the ground that the defendants, Bunce, Esler & Co., being bona fide creditors of the corporation, acquired a better title to the engine than the plaintiff, by virtue of a judgment and execution against Montgomery & Co. That although the plaintiff might allege fraud against the corporation he could not do so against its bona fide creditor dealing with the corporation without notice of the fraud.
    The cause was again tried and the plaintiff was nonsuited. This judgment was affirmed by the General Term on the ground that evidence of fraud between Montgomery & Co. and the corporation was irrelevant and immaterial in this action against the bona fide creditors of said corporation.
    The plaintiff appealed to this court, and the judgment of the General Term was reversed, and a new trial ordered on the ground that if the corporation was organized for the purpose of defrauding the creditors of Montgomery & Co., the transaction was fraudulent and void as against said creditors,- and that prior to the purchase by plaintiff under this execution, his equities were equal to those of the creditors of said corporation; and as the plaintiff’s purchase of the engine in question was prior in point of time to that of defendants, the title he acquired was superior to that of the defendants.
    The cause was again tried, and on that trial the court charged the jury:
    1st. That if they believed the corporation was organized, and the property of said firm transferred thereto, and the business thereafter carried on with the fraudulent purpose, on the part of Montgomery or Montgomery & Co., of preventing plaintiff from enforcing his debt, such organization was absolutely void as to plaintiff, and he had the right to sell the engine, or at least Montgomery’s interest in it, and his purchase gave him a superior right to that of Bunce & Co., although they may have dealt with the company without notice of the fraudulent intent, and were, in fact, Iona fide creditors of said company.
    2d. If the company was organized, and the property of Montgomery & Co. transferred to it, and the business carried on with intent to defraud the creditors of said Montgomery or said firm, the plaintiff was entitled to recover.
    3d. That if the jury believed that the defendants, Bunce & Co., acquiesced in Montgomery’s use and possession of the property as his own, after the formation of the corporation, they were estopped from now setting up that the property belonged to the steam mill company.
    4th. That if the jury believed that the defendants, Bunce & Co., knew that the corporation was organized, transfer made and business carried on for Montgomery’s benefit, to defraud his creditors, or those of Montgomery & Co., the plaintiff was entitled to recover.
    5th. If the jury believed that in forming said corporation Montgomery intended to defraud his creditors, or those of Montgomery & Co., the plaintiff was entitled to recover to the extent of Montgomery’s interest in the engine in question, even if the other corporators were ignorant of such fraudulent intent, and had no intention to defraud such creditors.
    6. That if the jury believed that the other corporators of said steam mill company, in forming thereof, conspired with Montgomery or with Montgomery & Co., or aided them in forming said corporation with intent of defrauding the plaintiff, then the plaintiff would be entitled to recoverthe whole value of the engine.
    To which several propositions the defendants’ counsel excepted.
    The defendants requested the court to charge the jury that Montgomery and the stockholders of the steam saw-mill could make no disposition of the property of said company except subject to the debts of said company. The court refused so to charge, and the defendants’ counsel excepted.
    The jury rendered a verdict for the plaintiff, on which, judgment was duly entered, and the General Term, on appeal, affirmed said judgment and denied a motion made by the defendants for a new trial.

      A. Thompson, for the appellants.

      R. W. Van Pelt, for the respondent.
   Mullin, J.

When this case was before this court, on a former appeal, two questions seem to have been settled: 1st. That it was competent for the defendants to prove by way of defense to this action, that if the corporation was organized and the business thereafter carried on in its name, with the design of cheating and defrauding the creditors of William Montgomery or William Montgomery & Go., such organization and proceeding was absolutely void as against such creditors, and that a sale and purchase of the property in question by such a creditor would have given him title thereto, as against a creditor of the corporation who had given it credit without notice of such fraudulent purchase.

2d. That the bona fide creditors of the corporation, who had trusted it without notice of the fraudulent purpose, did not have an interest in its property superior to the creditors of the person whom it (the corporation) was formed to defraud.

These propositions are not now open for discussion. They must be taken as the law of the case; and it only remains to inquire whether they have been properly applied by the court below, and whether any errors have been committed on the last trial of the cause.

The first point made by the defendants’ counsel to reverse the judgment is that his motion to dismiss the complaint was improperly denied.

When the plaintiff rested he had proved the sale of the engine on an execution in his favor, against Montgomery & Go., the purchaser, by his agent, at Montgomery & Go.’s-shop; the seizure and sale of the same property thereafter, on an execution against the steam saw-mill company, and the value of the property. This was all he was bound, in the first instance, to prove, to make out a cause of action. There was no evidence up to that point of time, that the corporation had any interest whatever in the engine. The motion was therefore properly denied. But if the plaintiff had failed to make all the proof he was bound to make to entitle him to recover, it was the duty of the defendant to point out the defect, so that it might be supplied.

A defendant cannot omit to point out the defects in the case made by the plaintiff, and entitle himself to a nonsuit. Heither morals nor law will sanction any such practice.

When the debt on which the plaintiff’s judgment was recovered was contracted, Montgomery and Garrabrant composed the firm of William Montgomery & Co., and they gave a mortgage on the partnership effects as security. That mortgage does not seem to have been enforced, and it ceases to be a fact of any importance in the case, except so far as it might bear on the equities between the parties.

When the transfer of the property was made by Montgomery & Co. to the corporation, Lund had succeeded to the interest of Garrabrant in the partnership property, and joined with Montgomery in the conveyance of it to the corporation.

Lund was not liable to the plaintiff on the notes he held against Montgomery & Co., nor was his interest in the joint property liable to be seized and sold on an execution issued on a judgment on said notes. The transfer, therefore, of his interest in the partnership property to the corporation cannot be fraudulent' as against the creditors of Montgomery, or of Montgomery and Garrabrant. If, then, the transfer was made by Montgomery to the corporation, and if the corporation was formed and its business carried on for the purpose of defrauding the creditors of Montgomery, or of Montgomery and Garrabrant, the creditors of the latter did not become entitled to seize and sell the interest of Lund in the property.

Again, the corporation had carried on business after its organization, purchased property, contracted debts, manufactured engines and machinery with which Montgomery, or Montgomery and Garrabrant had nothing whatever to do. This property, thus acquired, could not be taken, upon any principle of law or equity, from Lund and his creditors, and applied to the payment of the debts of Montgomery, or of Montgomery and Garrabrant. If the corporation was swept away, the rights of the partners would revive to the property, unless it was proved that Montgomery was the owner of the whole property, which was not proved or pretended. On the contrary, on the formation of the corporation, certificates of stock were issued, and Montgomery and Lund retained but a share each, and transferred the residue to others. It would be-monstrous injustice, under these circumstances, to allow the creditors of Montgomery, or of him and Garrabrant, to appropriate the property of the corporation, or of Lund, to pay their debts. Yet the sheriff sold to the plaintiff the whole engine, not the interest of Montgomery, or of Montgomery and Garrabrant therein. Whatever conclusion we may arrive at on the other questions in the case it is quite clear that the plaintiff was not entitled to recover the whole value of the engine.

If it were found that Lund united with Montgomery to form and conduct the partnership for the purpose of defrauding his (Montgomery’s) creditors, that did not forfeit his title to his own property, or subject it to the payment of his (Montgomery’s) debts.

I am not prepared to say that there is no evidence of fraud in support of the finding of the jury on that question. I must say,'however, it is very slight indeed.

We must assume, for the purposes of the case, that the corporation was organized, and its business conducted with intent of defrauding the creditors of Montgomery, or of Montgomery & Co. It is not possible to say whether the jury has found that the business was conducted for the benefit of Montgomery alone, or for the benefit of Montgomery &• Co.; nor is it perhaps important. As the plaintiff was a creditor of Montgomery, he had the right to seize his individual property or his interest in any partnership of which he was a member. If the Montgomery & Go. whose creditors were intended to be defrauded, and for whose benefit the business of the corporation was carried on, was that composed of Montgomery and Lund, the plaintiff was not a creditor of that firm. If it was the firm of Montgomery & Garrabrant, then that firm as such had no interest in the property transferred to the corporation, nor was it in existence so as to be entitled to the profits of the business. This uncertainty as to the persons intended by the firm of Montgomery & Co., exposed the defendants to a finding against them, which, if the jury had been more fully instructed, might have been in their favor. But it is their own fault that more full and specific instructions were not called for.

The first branch of the judge’s charge to the jury is in accordance with principles settled by this court in this case on the former appeal.

The third branch of the charge is erroneous: 1st. Because there is no evidence in the case which would justify the jury in finding that Bunce & Co. knew that Montgomery used or possessed the property of the corporation as his own, after its organization. It is proved that the firm of Bunce & Co. knew that Montgomery, as president of the company, gave its notes in renewal of the notes of Montgomery & Co. But this did not prove that he was conductingothe business on his own account. It is conclusively proved that Montgomery never had the exclusive ownership or use of the property. If there was no corporation, then Lund owned an interest in the property and business; if the corporation was valid, then it (the corporation) owned and Montgomery did not own it. 2d. Because acquiescing in such use and possession did not, in any manner, injure the rights of the creditors of Montgomery or of Montgomery & Co., and certainly did not destroy the right of Bunce & Co. to compel payment of their debt from the corporation; and, 3d. Bunce & Co. were powerless to do anything to prevent Montgomery from using and possessing the property as his own. They were compelled to acquiesce, and as long as the creditors of Montgomery & Co. could not require Bunce & Co. to act in their behalf, and so long as there was nothing that Bunce & Co. could do that would benefit said creditors, acquiescence was entirely proper, and it could not be made to impair the rights of Bunce & Co. to enforce their debt against the corporate property.

Without examining either of the other branches of the charge, or the requests to charge, I am of the opinion, for the reasons above stated, that the judgment of the General Term should be reversed and a new trial ordered, costs to abide event.

The other judges concurred in reversal on the ground that the third branch of the charge was improper.

Judgment reversed.