author: WILLIAMS, J.

text:
    Yellott D. Dechert v. Municipal Electric Light Co.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    ..Contracts—Interpretation—Question for jury.
    It is a question for the jury whether two contracts, executed on the same day, but neither referring to the other, one providing for equipping plaintiff’s building with electric wires, and the other for supplying electricity, were independent contracts, or were only parts of one transaction, so as to render applicable to the contract for wiring a provision of the contract for supplying electricity, that defendant should '.be released from all claims resulting from the use of electric currents when the wiring and equipments should have been approved by the board of underwriters. Patterson, J., dissenting.
    Appeal from trial term, Yew York County.
    Action by Yellott D. Deohert, as receiver for the benefit of 'the creditors of Joseph Byan, against the Municipal Electric Light Company. From a judgment dismissing the complaint, entered on a verdict directed by the court in favor of defend.ant, and from an order for an additional allowance of costs, plaintiff appeals.
    Louis Marshall, for appellant; Paul D. Cravath, for respondent,
   WILLIAMS, J.

—The plaintiff is the receiver of an insolvent debtor, Byan ; and the defendant is engaged in the business of equipping premises with wire and other appliances for the use of electricity, and of furnishing electricity from its central station for such use. The defendant equipped the premises of Byan with wires and appliances, and furnished him with electricity. The buildings and property of Byan therein took fire from'the electricity, and were destroyed ; and this action was brought to recover damages for such destruction of property, alleging that it was due to the negligent manner in which the defendant equipped the premises with wires and other appliances. Upon the trial the plaintiff made a prima facie case showing such negligence. Yo evidence was given in behalf of defendant as to such question, because, upon the evidence as to defendant’s liability therefor, the court held that there could be no recovery, by reason of the contract between the parties. There were two contracts executed,—one for equipping the -premises with wires and appliances, and the other for furnishing the electricity. Among the provisions in the latter contract was one numbered 8, reading as follows:

“ The company [defendant] is hereby released from all claim resulting from the use of electric current, when the wiring and electrical equipments on the premises of the consumer shall have been approved by the Yew York Board of Eire Underwriters, or other proper authorities.”

The destruction of property and the consequent damage re-suited from negligence in equipping the premises with wires and other appliances, which was done under the first contract, and the question was whether this eighth provision of the last, contract relieved defendant' from liability for such negligence in the performance of the first contract. It was claimed by the plaintiff that the two contracts were separate and distinct, and that the eighth provision in the last contract did not refer to the work done under the first contract, but referred alone to the work done and materials furnished under the second contract. The defendant claimed that the two contracts were made at the same time, and as a part of one and the same transaction, and were to be considered as a single contract, and that the eighth provision therefore relieved defendant from liability for the destruction of the property, and the consequent-damages. Upon the evidence given, the court held with the defendant, and therefore ordered the verdict in its favor. The court was not justified in ordering the verdict, if, upon the whole evidence, the jury would have been justified, in any view of the case, in rendering a verdict for the plaintiff. The contracts, by their language, in no way-referred to each other. The inference, therefore, from the contracts themselves, was that they were separate and distinct. Parker, J., in 84 Hun, 576, 66 S. R. 849, said:

“ The subject-matter and terms of the contracts being different, and neither containing any reference to the other, it. was necessary that the answer should contain allegations requiring an inference that the agreements should be read and construed together, as one instrument. This the pleader did not do. On the contrary, the only inference presumable from the language employed is that there were two distinct agreements, instead of two separate writings constituting one agreement.”

The necessary conclusion to be drawn from the decision of the general term would seem to be that, in the absence of evidence outside of the contracts themselves, a defense could only be made out by considering the two contracts asl one, inasmuch as it was held on demurrer to the answer that no defense was alleged, because it was not alleged that the two contracts were made at the same time, and as a part of the same transaction, and were to be considered and read together. The question then arose upon the pleadings alone, however,, while the question is now to be determined upon the pleadings and evidence given on the trial. It seems to us, as the case now stands, that the two contracts must be treated and considered as one, in order to relieve the defendant from liability for its negligence in equipping the premises with wires and other appliances under the first contract. Assuming the second contract to have been a separate one, the eighth provision thereof could not be considered as intending to relieve the defendant from liability for damages resulting from a negligent performance of the first contract. Its. sole purpose would seem to have been to relieve the parties from liability for the negligence in the performance of the second contract. Even though the premises might have been properly equipped with wires and other appliances under the first contract, still the introduction of the electric current involved dangers for which the defendant would have been liable in the absence of this eighth provision in the second contract. Such dangers might result from an excessive supply of electricity ; from an improper relation between the size of the wire through which the electricity was transmitted, the number of lamps supplied by the wires, and other similar causes. Moreover, under the second contract the defendant had to place upon the premises the meter and other appliances necessary to connect the consumer’s installation with defendant’s main wire, and to keep the meter and these appliances in repair; and the consumer, under this second contract, was strictly forbidden to interfere with the meter and these appliances. Damages might result from imperfections in the meter and these appliances, and there might be difficulty in defendant’s showing what it claimed to be the fact,—that the damages suffered resulted from the consumer’s interference with the meter or these appliances, rather than the negligence of defendant in supplying a proper meter and appliances, or keeping them in proper repair. If the contracts were entirely separate, we must assume that the eighth clause in the second contract referred to damages resulting from causes growing out of that contract, for supplying the electricity, rather than such as might result from a negligent performance of the first contract. The second contract, it will be remembered, in no manner, by its terms, referred to the first contract; and it would evidently have contained this eighth provision (as it was in a printed form), in a case where the defendant did not equip the buildings with wires and appliances for the consumer, but where such work was done for the consumer by other parties. A somewhat different case would be presented if the second contract, instead of being upon a printed blank, and this eighth provision being-printed, as one of the conditions, upon the back of it, had all been written out at the time as a contract for that particular case. The rule as to this class of contracts is that, when a release from liability is alleged to have been made, the contract should be strictly construed against the party seeking to absolve itself from a liability which it would otherwise incur. Having regard to this rule of construction, and considering the nature of these two contracts, and that the second one in no way, by its terms, refers to the first one, it seems to us that, if the contracts are to be regarded as separate and distinct, it cannot be held that the fair or necessary inference is that the eighth provision in the second was intended by the parties to reheve the defendant from any negligent performance of its work under' the first contract.

We think the relief of the defendant from liability for negligence in performing the work under the first contract can only be claimed upon the theory that the two contracts were but parts of one negotiation and one agreement, and were understood by the parties at the time to constitute really a single agreement. This fact was not to be deduced from the contracts themselves, as held by the general term; and it would therefore seem to follow that it was necessary to have resource to the evidence given on the trial, outside the contracts themselves, to establish such fact. And the court could only take away from the jury the determination of this question, if the evidence was such as conclusively to establish the fact, and to require a verdict with reference thereto to be rendered in favor of the defendants. It seems to us that the court was in error in taking this question of fact from the jury. Under the evidence, it was a question of fact, for the jury, whether the agent, Hogan, had authority to make these two contracts, or either of them, without submitting them for approval to the defendant itself, or to' make a contract for equipment without an accompanying contract for lighting. The evidence upon this subject was conflicting, and it was for the jury to determine where the truth was. . They would have been justified in finding that the agent had authority to, and did, complete the contracts, without submitting the same to the defendant for approval after they had been executed. The contracts were executed the same day, and within a few hours of each other,—the one for equipment first, the one for lighting afterwards. Hogan testified that the two contracts were negotiated together, during several different days, and that there was talk all along about the lighting as well as the equipment of the buildings. Ryan disputed this, and testified that nothing whatever was said about a contract for lighting during the negotiations for the contract for the equipment, and that the subject of a lighting contract was first suggested and talked about after the contract for the equipment had been negotiated, prepared, and executed; that then there was negotiation and talk about a contract for lighting, and subsequently that contract was prepared and executed. Ryan testified that, during the negotiations for the equipment, Hogan submitted his proposition to the defendant itself, and returned with the answer that the defendant accepted such proposition, and that this was before the equipment contract was prepared or executed, and before any talk had been had about a lighting contract. There was much examination and cross-examination of these two witnesses, and their evidence was more or less shaken, and varied from time to time; but their credibility was for the jury, who were to consider all the evidence, and to determine what the truth was, and it seems to us, their verdict in favor of the plaintiff upon this issue, to the effect that the contracts were separate and distinct contracts, and were not understood by the parties to constitute a single agreement, would have been supported by the evidence, and could not, under the rules applicable to the trial of issues of fact before juries, have been set aside by the court.

The result of the suggestions here made is that the court erred in taking the case from the jury and ordering a verdict for the defendant. For this error the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide event.

VAN BRUNT, P. J., and BARRETT, and RUMSEY, JJ., concur. PATTERSON, J., dissents.


source: Caselaw Access Project

author: INGRAHAM, J. WILLIAMS, J.

license: Public Domain

text:
    In the Matter of the Probate of the Will of Maurits F. H. De Haas.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Wills—Execution—Presence of subscribing witnesses.
    Signing by testator in the presence of or acknowledgment of his signature to the subscribing witnesses (3 Rev. St. p. 68, § 40) is not shown by the testimony of the subscribing witnesses that they signed the will at the request of testator, who stated that it was his will; that they signed it together ; that they could not see that testator had then signed it; and that they did not see his signature, though testator read to them the attestation clause, which recited all the requirements of law. Williams and O’Brien, JJ., dissenting.
    Appeal from surrogate’s court, New York County.
    Proceedings for the probate óf" the will of Maurits F. H. De Haas, deceased. The will was admitted to probate, and contestant appeals.
    E. L. Heydecker, for appellant; Jacob S. Van Wyck, for respondent.
   INGRAHAM, J.

-—The appellant objected to the admission of the will of this testator to probate, on the ground that his subscription at the end of the will was not made by the testator in the presence of each of the attesting witnesses, nor acknowledged by him to have been so made to each of such witnesses; and the surrogate having overruled that objection, and admitted the will to probate, the appellant has appealed to this court.

The Revised Statutes (volume 2, p. 63, § 40) imperatively require the subscription to the will by the testator to be made in the presence of each of the attesting witnesses, or that such subscription shall be acknowledged by the testator to have been made by him to each of such witnesses; and no will can be admitted to probate unless there is satisfactory evidence before the surrogate that this provision of the statute has been complied with. The Code of Civil Procedure (section 2618) provides ' that, before a written will is admitted to probate, two, at least, of the subscribing witnesses, must be produced and examined, if so many are within the state, and competent and able to testify; but by section 2620 of the Code it is provided that if. the subscribing witnesses to a written will are dead, or incompetent, by reason of lunacy or otherwise, to testify, or unable to testify, or if such subscribing witness is absent from the state, or has forgotten the occurrence, or testifies against the execution of the will, the will may, -nevertheless, be established upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of the action. These provisions, taken together, would require that the subscription made in the presence of each of the witnesses, or the acknowledgment by the testator to each of the witnesses, that the superscription was his, must be proved either by the subscribing witnesses, or by the proof of handwriting and of such circumstances as would be sufficient to prove that the will had been subscribed by the testator at the end thereof prior to the time that the attesting witnesses signed it, and that such subscription was made by the testator in the presence of the witnesses, or that he expressly acknowledged a particular subscription to be his subscription to the will. This must be established, as to two witnesses, by evidence of such circumstances as would be sufficient to prove the fact of such subscription, either in the presence of the witnesses, or if not that, then an acknowledgment of such subscription to the subscribing witnesses by the testator.

In Re Mackay’s Will, 110 N. Y. 614, 18 S. R. 558, it was held that the “ subscribing witnesses to a will are required by law, for the purpose of attesting and identifying the signature of the testator, and that they cannot do unless at the time of the attestation they see it ” ; that “ the formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and imposition. To this end, the witnesses should either see the testator subscribe his name, or he should, the signature being yisible to him and to them, acknowledge it to be his signature ; otherwise, imposition might be possible, and sometimes the purpose of the statute might be frustrated.” In Lewis v. Lewis, 11 N. Y. 220, where the acknowledgment or declaration made by the testator to the witnesses, or in their presence, as to the instrument, was, I declare the within to be my free will and deed,” it was held not a sufficient acknowledgment of his subscription to the witnesses, within the statute; Allen, J., writing the opinion, saying: “ A signature neither seen, identified, nor in any manner referred to as a separate and distinct thing cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name, to which the signature, may or may not be at the time subscribed.” And in Re Laudy’s Will, 148 N. Y. 404, the same principle was applied.

The surrogate has admitted the will to probate, and the first question that we have to determine is whether there is any evidence upon which the finding could be based that the testator either subscribed his name in the presence of two witnesses, or acknowledged it to two witnesses at the end of the will to be his signature. In Re Laudy’s Will, supra, there were two witnesses to the will, Dr. Porter and Mrs. Edwards. The testimony of Dr. Porter tended to show that the signature of the testatrix was upon the instrument at the time it was presented to him for his signature, and that she then stated that she had signed it. The testimony of Mrs. Edwards was to the effect that, at the time the paper was presented to her for her signature, it was so folded that she saw only the signature of Dr. Porter, and that she recalled no expression on the part of the testatrix in which the testatrix stated that she had signed the instrument. The attestation clause upon this will was substantially the same as that to the will in question, and the court of appeals, affirming the order of the general term which reversed a decree of the surrogate refusing to probate this will, held that the testimony of' Mrs. Edwards was insufficient to authorize the admission of the will to probate; that there should be a new trial, as upon this evidence a question of fact was presented which involved the credibility of the witnesses; and that the difference between Dr. Porter’s and Mrs. Edwards’ testimony as to the exhibition of the testatrix’s signature and her alleged declaration with reference thereto, together with the inferences to be drawn from the surrounding circumstances, required the submission of the question to a jury,—thus applying the provisions of section 2620 of the Code, that, where one of the subscribing witnesses testifies against the execution of the will, or, in other words, testifies to facts which would prevent the probate of the will, the will may, nevertheless, be established upon proof of the handwriting by the testator and thp subscribing witnesses, and also such other circumstances as Avould be sufficient to prove the will upon the trial.

Keeping in mind this principle,we may examine the testimony of the two surviving Avitnesses to the will, the third Avitness having died before the testator. The íavo surviving Avitnesses Avere Mr. Skinner and Mr. Guy. Mr. Skinner, the first Avitness examined, testified that he first saw the Avill upon the day of its date; that one morning, upon visiting the studio of Mr. Guy, the other subscribing witness, the testator came in, and said he Avould like our signatures to his will, Mr. Hubbard being also called on.” The” witness then stated that his impression Avas that he (the testator) “ produced this paper, stating that it was his Avill, and asked us to sign it. we then signed it. 1 signed it, and I think the others did. We all three signed it together. On examining the paper, I see upon it the signature of Mr. De Haas. I cannot swear that the signature was there at the time I witnessed the paper. Whether he put it there in ■our presence I am not quite sure, but it Avas there before Ave left the room. I do not now recall any Avords that were used, the substance of them, was simply that it Avas his will, and he wanted our signature to it.”. It is quite clear that this is in- - sufficient to establish either the signing of the will in the pres- • ence of Hr. Skinner, or an acknowledgment by the testator to • Hr. Skinner of a signature purporting to be that of the testator ■ as his (the testator’s) signature. The witness states again and again that he was testifying only as to impressions. While the attestation clause states that the testator signed the instrument in the presence of the witnesses, it does not appear on the testimony of Hr. Skinner that that statement of the attestation clause was true, and that the testator did subscribe the will in the presence of Hr. Skinner. In fact, the testimony of the • witness seems to be that all there was said to him was that the testator said he would like the witness to witness his will, and that, when he made that remark, he had a paper in his hand, upon which the witness subsequently wrote his name. The other subscribing witness swore that the testator brought the paper to his room, and asked him to sign his will, and that he ■ signed it, with the others; that Hr. Skinner and Hr. Hubbard were in his (the witness’) room at the time; and that the testator read the attestation clause to the witness before he was requested to sign as a witness. The witness further testified that • he had no recollection of seeing the testator sign the will; that • he (the testator) read the attestation clause, but did not read the rest of the will, and he held the will “ somehow in this - way,”—in a way in which there was scarcely anything to be seen; held it folded down something like that (indicating); that - he (the witness) saw nothing of the body of the will, and knew nothing of its contents; that he saw only the attestation clause, the place where he was to sign, and the signatures of the witnesses that were there. The ■ witness does not recall whether • he saw the paper signed or not. He says that nothing more was said by rae testator when he handed the paper to the witness, requesting- his signature, “ than that it was his will, and he asked me if I would sign it, and I supposed that was all that was necessary,—my signature as a proof.” It was in evidence that the other subscribing witness, Hr. Hubbard, was dead, but no effort was made to prove his signature.

We think this evidence was insufficient to prove that the ■ testator subscribed this will in the presence of either of the two witnesses who were examined, or had acknowledged to either of them that a particular subscription or signature was his signature. The statute requires either a signature in the presence of the witnesses (of which there is no evidence), or an acknowledgment by the testator of a signature which was • exhibited to the witness as his signature to the instrument. There is no evidence that any signature purporting to be a signature or subscription of the testator was ever shown to either of the two witnesses examined; and thus the fact of such subscription in the presence of two witnesses, or an acknowledgment of a subscription to two witnesses by the ■■ testator, is unproved. The attestation clause, as it stands, . that the will was signed by the testator in the presence of the three subscribing witnesses, and proof of the death of one witness and of Iris signature to the attestation clause would be sufficient proof, within the section of the Code before cited, that the testator signed the will in the presence of one witness. Such proof was not offered as to the handwriting of such subscribing witness. But, to justify the decree in admitting the will to probate, there must be the evidence as to the fact of such subscription in his presence, or an acknowledgment to him of a subscription exhibited to him as the signature of the testator. The evidence does not show that there was a subscription to the will by the testator in the presence of the other two witnesses, thus showing that the attestation clause in that respect was false. The evidence does not show that the testator acknowledged to the two witnesses his signature to the instrument, or stated to them that he had signed the paper, or that a writing that he exhibited was his signature to the paper. And thus applying the principle in the case of Lewis v. Lewis, supra, that “ a signature neither seen, identified, nor in any manner referred to as a separate and distinct thing cannot, in any just sense, be said to be acknowledged by a reference to the entire instrument - by name, to which the signature may or may not be at the time subscribed,” it seems that the evidence did not justify the admission of this will to probate.

We think, therefore, the decree of the surrogate should be reversed, and sent to the trial court of the supreme court, to be tried before a jury, with costs to the contestant to abide the result.

YAH BRUHT, P. J., and PATTERSOH, J., concur.

WILLIAMS, J.

(dissenting).—The contestant and appellant is the widow of the testator. The testator died Hovember 23, 1895, leaving the widow and three children by a former wife, his only heirs at law and next of kin. His will was made June 20, 1883, prior to the death of such former wife. The estate consists entirely of personal property. There were three witnesses to the will, Hubbard, Skinner, and Guy. Hubbard was dead at the time the will was presented for probate, and his signature as a witness thereto was not proven. The other two witnesses were examined before the surrogate upon the proceedings resulting in the probate of the will. The only question litigated before the surrogate (aside from the questions as to the construction of the will) was whether the due formalities were observed in its execution. The will was holographic, was acknowledged by the testator to the witnesses to be his will, and was declared by him in their presence to be his will, and they all subscribed their names thereto as witnesses, at his request, in his presence, and in the presence of each other, signing the ordinary attestation clause, stating, recites among other things, that the will was signed in their presence.

The only question is whether, upon all the evidence, the surrogate was justified in finding that the testator subscribed the will in the presence of the witnesses, or acknowledged his signature thereto to each of the witnesses. It is not disputed that it was necessary to establish a subscribing of the will in the presence of the witnesses, or an acknowledgment of the signature to each witness, and that, if an acknowledgment was relied upon, it must have appeared that the signature itself was visible to the witnesses. In re Mackay’s Will, 110. N. Y. 611; 18 S. R. 558 ; In re McDougall’s Will, 87 Hun, 349 ; 68 S. R. 426; In re Taudy’s Will, 148 N. Y. 403. In Orser v. Orser, 24 N. Y. 52, it was held that a will duly attested upon its face, the signatures to which are all genuine, may be admitted to probate, although none of the subscribing witnesses are able to swear from recollection that the formalities required by the statute were complied with, and even although some of them should swear positively that they were not, if the other evidence warrants the inference that they were. In Trustees v. Calhoun, 25 N. Y. 425, it was held that facts making due-execution of a will need not all or any of them be established by the concurring testimony of the two subscribing witnesses. While both witnesses must be examined, the will may be established even in direct opposition to the testimony of both of them. In Re Cottrell’s Will, 95 N. Y. 335, it was held that a regular attestation clause, shown 'to have been signed by the witnesses, and corroborated either by the circumstances' surrounding the execution of the instrument, the testimony of the other witnesses to the fact of due execution, or other competent evidence, is sufficient to establish a will signed by the testator, even against the positive evidence of the attesting witnesses to the contrary. There are many other authorities to this same effect, and the principles established in these cases' will hardly be controverted. Applying them to this case, it must be held that the facts and circumstances in proof before-the surrogate were such as to warrant him in finding a proper execution of this will. He was justified in finding, notwithstanding the want of recollection of the witnesses, or their more or less positive evidence to the contrary, that the testator signed the will in their presence, or at least acknowledged his signature to each of the witnesses, such signature being visible to them at the time. The issue appears to be somewhat narrowed by proof given before the surrogate to the effect that the body of the will, the signature of the testator,, and the body of the attestation clause were all written by the testator himself, and with the same ink and pen, while the ink and pen used by the witnesses in signing their names were different from those used by the testator. This would seem to indicate that the will was signed by the testator before the witnesses were called in. If this was a fact, then the only question remaining was whether the acknowledgment of the testator’s signature to each of the witnesses was made, it being visible to the witnesses at the time. That he acknowledged the will to be his, and declared it to be his, is not disputed. It was sworn to by the witnesses, and was not denied. This acknowledgment would, by fair inference, seem to cover the signature, as well as the body of the will, the signature having been subscribed to the will, and being there at the time of such acknowledgment. In re Buchan’s Will, 16 Misc. Rep. 204, and the cases therein cited.

The only question really left, then, was whether there was evidence before the surrogate authorizing him to find that the signature was visible to the witnesses when it was acknowledged to them by the testator. The will was executed June 20, » 1883. The hearing before the surrogate, when the witnesses gave their testimony, was February 17, 1896. More than 12 years had then elapsed since the transaction occurred as to which the witnesses spoke. Can memory be relied upon for so long a time to give a correct account in detail of the transaction ? Are we to credit fully the statements of the witnesses, to believe they gave all that occurred, all that was said and done, and precisely as it was said and done ? Especially, are we to give such effect to the evidence of the witnesses, when it tends to contradict the attesting clause, signed by the witnesses at the time, the probabilities of the case, and other circumstances appearing in the case, tending to show the proper "execution of the will? It seems to us the surrogate was justified in finding the will was properly executed, and that he could not well arrive at any other conclusion. We do not consider the questions as to the construction of the will, inasmuch as the majority of the court agree to reverse the degree because the will was not shown to have been properly executed.

Our conclusion is that the decree of the surrogate admitting the will to probate should be affirmed, with costs. ■

O’BRIEM, J., concurs. ''


author: PATTERSON, J.

text:
    The People ex rel. John Illingworth v. Court of Oyer and Terminer of City and County of New York.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Contempt—Disobeying mandate—Commitment.
    Code Civ. Proc. § 8343, subd. 2, defining “ mandate ” as including “a writ, process, or other written direction” by a court or judge, is not exclusive, and therefore a commitment addressed to the sheriff by name, and delivered to a deputy sheriff to be executed, is a mandate of the court, for failure to execute which the deputy may be punished under Code Civ. Proc. § 8, subd. 8. giving courts of record power to punish as for a criminal contempt willful disobedience of its lawful mandates.

      Certiorari by John Illingworth to review the decision of Mr. Justice Barrett in the court of oyer' and terminer, adjudging him guilty of contempt, and sentencing him to 10 days’ imprisonment, and to pay a fine of $50. x
    Burnett, Stayton & Hagen, for appellant; John D. Lindsay, for respondent.
   PATTERSON, J.

—The writ of certiorari in this case brings before the court but a single question. All the facts are admitted by stipulations which form the substantial part of the record. It is admitted that the relator was a deputy sheriff, designated as a “ prison guard,” who among other things, was charged with the duty of conveying persons committed by the criminal courts to the city prison when required so to do. On« the 10th of May, 1895, one William W. McLaughlin was on trial in the court of oyer and terminer, and on.that day a commitment was issued, addressed to the sheriff of the city and county of New York, by name, directing that the said McLaughlin stand committed to the custody of the warden of the city prison of the city of New York, until thence delivered by due course of law. That commitment was in writing, and was certified to by John F. Carroll, the clerk of the court," as a true extract from the minutes of the trial. It was delivered to the relator, acting as deputy sheriff or prison guard; and he actually took into custody the said McLaughlin, and, knowing the order of thé court, and having the same in his possession, and having such custody of the prisoner, he failed to execute the warrant for a period of seven hours and a half, and during that time permitted McLaughlin to walk about the city, took him to (for the said McLaughlin’s pleasure), and kept him at, a bath .house, far removed from the city prison, and without any authority so to do. The relator was brought before the court to show cause why he should not be punished for a contempt ; and, upon the facts, he was^ adjudged to be guilty of a criminal contempt, in that he willfully disobeyed the order lawfully made by the court. ' And thereupon it was adjudged that for the criminal contempt he be imprisoned in the county jail in the city of New York for 10 days; that he pay a fine of $50 ; and that, in default of such payment, he be imprisoned until such fine be paid, not exceeding 30 days in addition to the period above fixed.

It is stipulated between the parties that the relator does not raise any contention as to the power of the court of oyer and terminer to issue the commitment, nor as to the form thereof; or, in other words, it is admitted that the commitment contains all the formalities requisite under the law to the regularity of such a process. By this stipulation, there is therefore eliminated from the case any consideration of the sufficiency of the commitment as a written order, or as one signed by the judge ; but the question is left as to the process being a mandate, within the meaning of subdivision 2 of section 3343 of the Codé of Civil Procedure, in this respect: that it does not mention the relator as the person named or otherwise designated in the commitment to do or refrain from doing the act therein specified,but was addressed to the sheriff.

It may well be contended that the commitment, being addressed to the sheriff, was also addressed to his deputies, for the sheriff may act through deputies under all processes issued to him; but we need not consider the nature of the duties of a deputy sheriff or prison guard. The relator being duly appointed, and it being among his duties to convey persons committed by the criminal courts to the prison when lawfully required so to do, nothing need be said respecting the authority and power of the relator to execute the commitment which was handed him, and which, in effect, he undertook to execute. The only open question is whether this deputy sheriff's name should have appeared on the commitment as the person instructed or directed to execute it, and does the omission of such name take the process out of the meaning of the word “ mandate,” as that word is used in the provisions of the Code of Civil Procedure applicable to criminal contempts. It is provided by section 8 of that Code that a court of record has power to punish for a criminal contempt for certain designated offenses, and no others, among which is the willful disobedience to its lawful mandate. Subdivision 3. It is claimed' that this commitment is not a lawful mandate, and that, by subdivision 2 of section 3343, it is provided that the word “ mandate ” “ includes a writ, process, or other written direction, issued pursuant to law, out of a court, or made pursuant to law, by a court, or a judge, or a person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwdse designated therein, to do, or to refrain from doing, an act therein specified.” That section is found in chapter 22 of the Code, relating to definitions and regulations concerning the construction, effect, and application of that Code. It is also provided in section 3343 that, “in construing this act,” the rules prescribed in chapter 22 must be observed, excejDt where a contrary intent is expressly declared in the provision to be construed, or is plainly apparent from the context thereof. Recurring to section 8 and its provisions concerning the power of the court to punish as for a criminal contempt a person guilty of willfully disobeying its lawful mandate, we think it is plainly apparent from the context thereof, as well as from .the object and scope of that section, that it was not intended that the inclusive words of subdivision 2 of section 3343 should apply to such a commitment as that intrusted to this relator for execution. The subject of legislation in the article of the Code of which section 8 forms a part is the general powers and attributes of courts. The provisions relating to contempts were such as were deemed necessary to the effectual administration of justice in those courts. Many criminal contempts are enumerated, viz.: Disorderly, contemptuous, or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority; breach of the peace, noise, or other disturbance; contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal and proper interrogatory ; publication of a false or grossly inaccurate report of its proceedings; and willful disobedience or resistance to its lawful mandate. The word “ mandate ” here is evidently used in the sense of a command or order or direction which the court is authorized to give, and which a person is bound to obey. There are many such orders given by a judge on the trial of a cause that are not reduced to writing, or directed in writing to the person who is bound to obey them. A command given to a clerk or to an attendant or to a witness not to leave the court room until a trial is concluded, and many others that might be suggested, are lawful orders and directions of the court, disobedience of which would tend to embarrass or defeat the administration of justice; and this provision of the statute, referring to mandates, must be given such a construction as would enable the judges, in the performance of their duties, to carry on the business of the court without being obliged to reduce to writing, sign, and direct every such order or mandate, obedience to which might be lawfully required. The word “ mandate,” in this connection, certainly includes all that is comprehended in the enumeration in section 3343. But that is not an exclusive enumeration, and that it was not intended to be so may fairly be presumed from the effect of the provision with respect to the observance of the definitions of terms used in the Code, which is compulsory except where a contrary meaning is evidently "or plainly intended in the use of the' .word.

It is said that a contrary view has been taken to this in certain cases to which our attention has been called. The case of McKelsey v. Lewis, 3 Abb. N. C. 61, wras a special term case, in which the citation from the Code was not altogether accurate. The case of People v. Court of Oyer and Terminer, 36 Hun, 277, is not a determination of the question at all. Mr. Justice Daniels, in his opinion, took the view for which the relator here contends. Mr. Justice Brady merely concurred in the result of the decision in the case, and not in the-opinion of Mr. Justice Daniels. Presiding Justice Davis, in his opinion, combated most successfully the view expressed by • Judge Daniels, and held, as we hold, that the statute of inclusion is not in this case one of exclusion, and that the commitment was a mandate, within the meaning of subdivision 3 of section 8 of the Code of Civil Procedure.

The writ of certiorari must be dismissed, with costs.

All concur.


text:
    Cornelius M. Breen v. William F. Lennon.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    1. Mechanics’ liens—Lis pendens—Power to cancel notice.
    The court has no general power to cancel notice of lis pendens, filed in a mechanic’s lien action, merely because the procedure in such cases is regulated by the special provisions of the mechanic’s lien law ; but the matter is governed by Code Civ. Proc. § 1674, which provides that, after an action is settled, discontinued, or abated, or final judgment is rendered therein, and time to appeal has expired, the court may direct notice of lis pendens to be canceled of record.
    3. Lis pendens—Discharge—Mechanics’ liens.
    An action to enforce a mechanic’s lien ceases, on the giving'of the statutory bond to discharge the lien, to be an action affecting the real property, within Code Civ. Proc. § 1670, authorizing the filing of notice of lis pendens ; and therefore the giving of such bond abates the action, within section 1674, providing when a notice of lis pendens may be canceled.
    Appeal from special term, ¡New York County:
    Action by Cornelius ¡M¡. Breen against William F. Lennon to foreclose a mechanic’s lien. From an order denying a motion to cancel a lis pendens, defendant appeals.
    Samuel Cohn, for appellant; J. H. Shaffer, for respondent.
   PATTERSON, J.

—This is an appeal from an order denying •a motion, made by the owner of certain real estate situated in the city of ¡New York, to compel the cancellation of record of notices of lis pendens filed against the premises in a pending action to foreclose a mechanic’s lien. There are certificates appearing in the record, signed by the clerk of the city and county of ¡New York, stating that all mechanics’ liens filed against the property referred to have been discharged. The moving papers consist of an affidavit showing the filing of a bond to secure the lien, of the party opposing the motion, the making and entry of an order of this court discharging the lien, and also setting forth reasons why the cancellation of the lis pen-dens is important and is asked for. There were no affidavits submitted in opposition to the motion, and the question therefore arises upon the papers presented by the moving party, the appellant here. The' learned judge in the court below denied the motion simply on the ground that, at this stage of the proceedings, the court had no power to discharge the lis pen-dens, the action being undetermined. This decision was based upon the provisions of section 1674 of the Code of Civil Procedure. It is provided by that section that after an action is settled, discontinued, or abated,.or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, or if a plaintiff filing the notice unreasonably neglects to proceed in the action, the court may, in its discretion, etc., direct that a notice of the pendency of .an action filed as prescribed in the four preceding sections be canceled of record by a particular clerk, or by all the clerks with whom it is filed and recorded. The effect of this provision, as has been determined (Beman v. Todd, 124 N. Y. 114, 35 S. R. 214), is that there can be no cancellation of the notice save in the manner prescribed by the Code.

It is claimed by the appellant that the provision is inapplicable to this case, for the reason that the procedure in mechanic’s lien cases is under the special provisions of the act of 1885, and not under the Code, and that, therefore, the court has a general power to discharge a lis pendens filed in a mechanic’s Hen action. That- is not true. There is no such general power. The filing of the lis pendens in an action to foreclose a mechanic’s lien is merely the filing of a notice as in any ordinary action to foreclose an incumbrance. It is not a proceeding independent of and disconnected from a civil action, brought, under the authority of, and to be conducted in the way prescribed for all civil actions by, the Code of Civil Procedure; and, when an action to foreclose such a lien is begun, a notice of lis pendens is required to be filed in that action, as constructive notice to any one taking under the owner or the persons as against whom the Hen is filed. A notice of lis pendens, in such an action performs precisely the same office as in any other case in which the filing of a notice is required by law. There is no difference, in legal effect, between a formal notice of lis pendens as constructive notice, and the filing of a bill in chancery, followed by service of a subpoena. Under the chancery practice, such filng ancl service were constructive notice, which continued until the case was finally disposed of; ancl the words of the Code of Civil Procedure with respect to a * notice of lis pendens merely recognize the,same rule as existed in equity before the act of 1823 (page 213, § 11), which was incorporated in the Revised Statutes (2 Rev. St. p. 174, § 43), and which provided that, to render the filing of a bill in chancery constructive notice to a purchaser of real estate, the complainant must file with the clerk of the county in which the lands to be affected by such constructive notice were situated a notice in writing of the pendency of the suit. The rule both under the Code and the practice in the circuit courts in equity and in chancery anterior to the passage of the Code is the same-with regard to the duration of the constructive notice given by a suit pending, and therefore the court below was correct in. its view of the general power of the court in the matter. But, while a general authority to remove a notice of lis pendens' does not reside in the court, the right of the moving party may, by a fair construction, be brought within the provisions, of the Code. An entirely new feature is introduced into the-subject by the enactment known as the Mechanic’s Lien Law,” and its provisions respecting the removal or discharge of mechanics’ Hens upon real property. It is provided in that, law that an application may be made to the* court pending a. suit to foreclose a Hen, to discharge the lien upon security being given in the form of a bond, and that, upon the approval of such bond and the discharge of the lien by order of the court, that lien shall be transferred from the property to the bond. That procedure at once frees the real estate from the lien. There is no longer any lien upon the property. There is something substituted for it to which the lien attaches (Morton v. Tucker, 145 N. Y. 244, 64 S. R. 685, and the action thereafter ceases to be an action affecting real estate. As such it is abated; that is, put an end to, beaten down (abattre). Although it may be necessary, in the final judgment in such an action, to declare the existence, at the time of the beginning of the suit, of a lien on the real estate, yet the claim is in no way and under no circumstances enforceable against the real estate. This change in the nature of the action is one operated by the statute. It still remains an action to foreclose a lien, but only as against that which is substituted for the real estate. One of the provisions of the Code with respect to the filing of a notice of lis pendens is that, in actions brought to recover judgments affecting the title to, or the possession, use, or enjoyment of real property, the plaintiff may file his notice of pendency of the action, which shall be constructive notice to purchasers. This action has ceased to be one in which a purchaser "would be bound by any notice of its pendency. Fío right claimed by the plaintiff or any of the defendant lienors is to be protected by the suit further than as against the substituted security. It has therefore completely expired as an action in which a notice of lis pendens is necessary to charge any person dealing with the land itself. Fío claim to ' or upon it remains for a purchaser to take notice of. The object of filing the notice has ceased, and there is no necessity nor propriety in the maintenance of it on the record, where it would remain as a cloud upon the owner’s title, and an impediment in the way of his selling or mortgaging his land and thus defeat the very purpose of the statute in allowing the transfer of the lien. The changed status of the action has converted it into one in which a notice of lis pendens against the land is not necessary, nor required ; and it may be so treated. The land is no longer involved in the foreclosure action, which is effectively ended as to it. For that reason, we think the motion should have been granted, and the order appealed from must be reversed, with costs, and the motion granted, with $10 costs.

All concur.


text:
    Albert Herter v. Jeremiah J. Mullen et al.

    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Landlord and tenant—Holding over—Sickness in tenant’s family.
    Tlie rule that a holding over creates a new lease for another year is not affected by the fact that the lessee was unable to vacate the premises at the expiration of his lease because of the illness of a member of his family, and it is immaterial that he gave the lessor notice that he would not occupy the premises for another year.
    Action by Albert Herter against J eremiah J. Mullen and •another. A verdict ivas directed in favor of plaintiff, and defendants moved for a neAV trial on exceptions ordered to be Heard in the first instance by the appellate division.
    Bernard J. Tinney, for appellants ; George Putnam Smith, for respondent.
   WILLIAMS, J.

—The action was brought to recover rent under a lease. March 9, 1894, the parties entered into an ■agreement in writing whereby the plaintiff leased the defendant a dwelling-house for the term of one year, from May 1, 1894, to May 1, 1895. The defendant occupied the dAvelíing-house during the year for Avhich the lease Avas given. At the expiration of the year the defendant’s mother, Avho Avas a member of his family, was sick with a disease, which at and prior to the expiration of the year, and for some íavo weeks thereafter, confined her to her bed, and it would have aggravated her disease and endangered her life to have moved her from the house; and for that reason the defendant was compelled to and did continue, after the expiration of the term of the lease (two weeks), to occupy the leased property. The defendant had, several months before the expiration of the lease, notified the plaintiff that he would surrender up the property leased at the end of the year. The plaintiff did not consent to the occupation of the property after the expiration of the term of one year. There was apparently an attempt made by the defendant, at the end of the two Aveeks Avhich he had occupied the property after the expiration of the year, to surrender the property to plaintiff. He vacated the premises and refused to pay rent. The plaintiff refused to accept the premises; claimed that the defendant, by holding over after the expiration of the one year, had taken the property for another year, under the terms of the same lease; and brought this action later for rent for a portion of the second year. When the defendant held over and remained in the occupancy of the 2>roperty, beyond the expiration of the year, - without the consent of the plaintiff, the plaintiff might have refused to permit the defendant to hold the property under the lease for another year, and might lmm taken legal proceedings and remoAmd him, and might have claimed and recovered double the rent provided in the lease, for the time the defendant remained in the occupancy beyond the year. 2 Rev. St. (Banks’ 9th ed.) p. 1819, §§ 10, 11. He had the right, however, to regard the holding over as creating a new lease for another year. The law is well settled upon this question. The right of the landlord to so regard the effect of the holding over is absolute, and no notice by the tenant of his intention not to retain the premises for another year, whether given before or ■after the expiration of the year, can affect the right of the. landlord to insist upon the legal operation of the holding over by the tenant without consent,—the creating of a new lease for another year upon the same terms. Commissioners v. Clark, 33 N. Y. 257; Schuyler v. Smith, 51 N. Y. 309 ; Adams v. City of Cohoes, 127 N. Y. 182; 38 S. R. 678; Haynes v. Aldrich, 133 N. Y. 287 ; 45 S. R. 243.

The only question raised upon this appeal is whether this rule of law would be varied in a case like the present one, where the holding over by the tenant was not voluntary,— not for his own convenience,—but was by reason, practically, of a necessity,—because he could not help it. The fact of the sickness of defendant’s mother, and that she could not be moved out of the house without aggravating her disease and endangering her life, was conceded on the trial. The question is therefore squarely raised in this case, and must be met. This question was not necessarily involved in Haynes V. Aldrich, supra, because in that case the sickness was not of a member of defendant’s family, but of the family of a subtenant, to whom the defendant had no right, under the lease, to let the premises. The defendant there was compelled to hold over, if at all, by reason of his wrong, and not of necessity, or because he could not have avoided it. As said by the court:

“The tenant remained in possession voluntarily,—for her own convenience and that of her sick boarder. If it was unsafe to remove the latter, the situation was wholly the fault of the tenant, who sets up as an excuse for one violation of the lessor’s rights the consequence of her own earlier violation of the terms of the lease.”

The court in that case expressly reserved the question whether there might not be an unavoidable delay, in no manner the fault of the tenant, directly or indirectly, which would serve as a valid excuse for holding over, and would avoid the absolute operation of the statute. While, therefore, this question was discussed in the opinion in that case, it was not decided. We are of the opinion that no such qualification should be, or could safely be, imported into the absolute rule of the law. It would make the landlord, rather than the tenant, suffer by reason of a misfortune to the tenant, which he, and not the landlord, should bear the burden of. And as said by Judge Finch in Haynes v. Aldrich, supra:

“ It would introduce an uncertainty into a rule "whose chief value lies iu its certainty. The consequent confusion would be very great. Excuses would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ever know when he could safely promise possession to a new tenant.”

Our conclusion is therefore that the exceptions taken by the-defendant should be overruled, his motion for a new trial denied, and judgment ordered for plaintiff on the verdict, with costs.

All concur.


author: WILLIAMS, J. BARRETT, J. RUMSEY, J.

text:
    Frederick C. Hoormann v. Climax Cycle Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Attachment—Affidavit—Knowledge of affiant.
    The granting of an attachment is not authorized by a positive averment iu the affidavit of facts, where it is apparent that affiant could have had no general knowledge of such facts, and the affidavit does not state that he had personal knowledge. 40 N. Y. Supp. 1067, affirmed. Ruinsey, J., dissenting.
    Appeal from special term, New York County.
    Action by Frederick 0. Hoormann against the Climax Cycle-Company. From an order granting the motion of George Schubach, a junior attaching creditor, to vacate plaintiff’s attachment because of the insufficiency of the affidavit on which the attachment was granted, plaintiff appeals.
    Charles S. Sinsheimer, for appellant; Stillman F. Kneeland, for respondent.
   WILLIAMS, J.

—The question involved in „this appeal is-whether a positive averment of facts, of which it is apparent the deponent, from his situation, could have had no general knowledge, is sufficient proof of such facts to authorize the granting of an attachment. The affidavit was made July 15, 1896, by the plaintiff, who was the assignee of the claim in suit, and showed that, for eight months last before the making-of the affidavit, he had been, and still was, a resident of New York City; that the defendant was a corporation in Illinois, and had its principal place of business in Chicago ; that previous to May 14, 1896, at the city of Chicago, the New York Standard Watch Company, a New York corporation, through its agent, sold to defendant, at its request, certain goods, wares, and merchandise, and delivered the same, on May 14, 1896, to defendant, at Jersey City; that the goods were sold at the agreed and reasonable price of $214, which the defendant promised to pay; that no part of the purchase price had been paid, although demanded ; and that, previous to the co_mmencement of the action, the claim for such purchase price had been duly assigned, for value, to the plaintiff. Ho statement was made in the affidavit that the plaintiff had personal knowledge of these facts, and no circumstances were stated tending to show that he had any such personal knowledge. It was not stated that, before the assignment of the claim, the plaintiff had had any relations with either , of the corporations, or knew any officer or agent thereof, not even the agent of the Hew York corporation who made the alleged sale.

The claim made by the appellant is that the inrplication arises, from the unqualified allegation of the facts, that the plaintiff had personal knowledge of such facts. This claim cannot be supported upon a review of the authorities. It has frequently been held in this state, and especially by the Supreme Court in the First .Department, that knowledge will not be presumed from a mere positive averment of the facts; but it must also appear from the affidavit that such knowledge really existed, by a statement of circumstances from which the inference of knowledge can be fairly drawn. In Buhl v. Ball, 41 Hun, 61, it was held that an affidavit made by plaintiff’s agent was insufficient, which stated the facts in unqualified terms, when nothing appeared which enabled the court to see how the deponent knew or could have known such facts, or showed the relations between him and the plaintiff to be such as to raise the presumption, from the nature of the agency, that he might have personal knowledge of the facts. In McVicker v. Campanini (Sup.), 5 N. Y. Supp. 577, it was held that an affidavit made by a son of plaintiff, alleging facts of his own knowledge, but -which did not show that the affiant, as agent or otherwise, personally conducted the business, and. disclosed no facts or circumstances tending to show that he had any knowledge, was insufficient. In Bank v. Barker (Sup.), 16 N. Y. Supp. 75, it was held that an affidavit made by plaintiff’s cashier, stating unqualifiedly that notes were forgeries, was not sufficient, in the absence of anything to show the deponent could have had any personal knowledge on the subject. In Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 324, it was held that the affidavit of one of the plaintiff’s attorneys, stating facts unqualifiedly, but not stating how he could have knowledge of such facts, was insufficient; that the true rule was that statements in affidavits would be presumed to have been made on personal knowledge, except where it appeared affirmatively or by fair inference that they could not have been, and were not, made on such knowledge. And where an affidavit in respect to a transaction of his client was made by one who was simply an attorney of record in an •action, and, so far as appeared, was only the attorney for that action, the plain inference was that such attorney had no personal knowledge of the facts stated. In Kahle v. Muller, 57 Hun, 144, 11 N. Y. Supp. 26, it was held that an affidavit made by an assignor of the claim sued on, which stated the indebtedness unqualifiedly, but contained no allegation that he had personal "knowledge thereof, or facts1 showing how he could have had such knowledge, was insufficient. In Bank v. Hall (1st Dept.), 60 Hun, 466,15 N. Y. Supp. 208, affirmed 120 N. Y. 663, it was held that an affidavit made by plaintiff’s attorney in Hew York, upon information furnished by its attorney in another-state, it being apparent that neither attorney could have had any personal knowledge of the facts stated, was insufficient.

It is not disputed by appellant’s counsel that the rule was well settled, as we have stated it, prior to recent decision in this department in the cases of Ladenburg v. Bank, 5 App. Div. 220, and Hanson v. Marcus, 8 App. Div. 318. There was-no design on the part of this court by that decision to change-the rule, which had for so long a time, and by so many decisions in this department, become well settled. That case was decided upon its own peculiar facts, and is entirely in harmony with the rule theretofore existing. That action was brought, upon bills of exchange made by the defendant in Hewfoundland, and subsequently purchased by the plaintiff, and protested in London for non-acceptance, while the plaintiff who' made the affidavit for the attachment was in Hew York City. It was claimed it appeared from the facts stated that the deponent could not have had personal knowledge of the making and protest of the bills, to which he testified unqualifiedly. It was held by the court that considering the date of the protest, December 10, 1894, and the time when the affidavit was made, May 20, 1895, there was no reason why the affiant might not, at the time he made the affidavit, have had in his possession the bills of exchange, and the notarial certificate of protest, and the court would so assume, and that, if he had them, he might properly depose upon knowledge. In the opinion of Mr. Justice Barrett, the rule laid down by Mr. Justice Van Brunt in Crowns v. Yail, above, was quoted, that, “ statements in affidavits will be presumed to have been made on personal knowledge, unless * * * it appears affirmatively or by fair inference that they could not have been, and were not, on such knowledge.” The rule was thus stated in different language from that found in any of the other cases,, and seemed to imply that the presumption was in favor of' the existence of personal knowledge, unless the contrary was-shown; but that there was no intention to change the rule in that case is obvious from the language used by Mr. Justice-Van Brunt, immediately following the statement of the rule,, viz.:

“ It seems to us that where an affidavit in respect to a transaction of his client is made by one who is simply an attorney of record in an action, and who, so far as the record shows, is only his attorney for the action, the plain inference is that such attorney has not a personal knowledge of the facts as to which he affirms. It is not even asserted in the affidavit that the affiant is the attorney in fact of the plaintiff, or that he had been the attorney of record of the plaintiff in any previous action; and all that can be inferred from the affidavit is that the retainer to bring this action was the first relation that had ever existed between the plaintiff and the affiant. Such an affidavit seems to be entirely insufficient, as the allegations must be presumed not to be within the knowledge of the attorney.”

whatever the language used by the learned justice in formulating the rule may have seemed to imply, therefore, the rule actually applied in the case ivas in accord with all the former decisions,—that, in the absence of evidence from which the inference could be drawn that personal knowledge existed, the presumption must be indulged that the affiant had no such knowledge, or, in the language of the latter part of the rule as stated, the fair inference is that there could not have been, and was not, such personal knowledge. Clearly, the same rule was believed to- exist, and ivas applied, in that case as was laid down in all the other cases. In the Ladenburg Case this same rule was recognized. In disposing of the facts in that case, Hr. Justice Barrett said :

“ But the defendant is in error in the belief that the affiant Avas shoAvn nqt to have, in fact, such knowledge. Knowing1 such as the law requires in affidavits of the present description is not necessarily personal observation of the affiant plaintiff.. That the bills of exchange Avere draAvn in UeAvfoundland, and protested in London, while the affiant AA'as in Heiv York, this is the sum and substance of defendant’s attack upon the affiant’s statement. The affidavit aatus made May 20, 1895, and the last of the bills Avas protested December 10, 1894. It Avas therefore quite possible that the bills with the documentary evidence of protest, were in the possession of the affiant plaintiff Avhen he made his affidavit. In vieAV of his assertion of knowledge, Ave must assume such to be the case, in the absence of evidence to the contrary. If he had these bills and notarial" certificate of protest in his possession, his assertion of knowledge was not unfounded. There Avas knowledge, within the sense of the statute.”

It thus appears that the theory upon which this decision Avas made Avas that, from the facts stated in the affidavits, the court Avould assume, and the natural inference was, that the affiant had this documentary evidence. This inference Avas not to be draAvn merely from the averment of a personal knoAvledge of affiant, but. this together with other circumstances appearing in the affidavit. That case, Ave repeat, Avas decided upon its OAvn peculiar facts. The rule should not be extended. In Ilanson v. Marcus, above, the Ladenburg Case was cited and relied upon. But then, again, the decision rested upon, facts which brought it Avithin the rule established by all the cases to which Ave have referred. The affidavit shoived that the affiant was the duly authorized agent, manager, and attorney in fact of the plaintiff, and that all the business transacted between the plaintiff and the defendants about which the affiant testified was had with an agent, though it did not state ' the affiant was such agent. These statements were such as to fairly warrant an inference that the affiant had general knowledge of the facts which he averred of his own knowledge. There was in these cases no design to change the rule theretofore established in this department. The well-settled rule should not be changed. To hold the affidavit sufficient in this case would be going far beyond the Ladenburg and Marcus cases, and would be a dangerous precedent for the future. Ye think the better and safer rule is the one heretofore uniformly adhered to in this department,-—that the mere averment of facts as upon personal knoAvledge is not sufficient, unless circumstances are stated from which the inference can fairly be drawn that the affiant has personal knowledge of the facts which he avers.

Our conclusion, therefore, is that the order appealed from should be affirmed, with costs.

VAN BRUNT, P. J., and BARRETT and PATTERSON, JJ., concur.

BARRETT, J.

—The requirements of section 636 of the Code of Civil Procedure are neither technical nor formal. The right to attach on mesne process is an extraordinary power given by statute against common right, and no title can be acquired by its exercise except upon strict compliance Avith the terms of the statute. 3 Enc. PI. & Prac. p. 3, and numerous cases there cited. By strict compliance is undoubtedly meant substantial compliance. But mere formal compliance will not answer. One of these substantial requirements is that the plaintiff must shoAV by affidavit, to the satisfaction of the judge granting the Avarrant, the existence of a cause of action against the defendant. He must shoAV this by affidavit,-r-that is, by something in the nature of proof,—not" by mere averment. It is true that in some cases a verified allegation of the cause of action may of itself furnish proof, sufficient, at least, to confer jurisdiction. The allegation must then, hoAvever, be verified by the plaintiff, or his agent Or attorney. It cannot be verified by a total stranger to the transaction, or by a person >vho is, in a legal sense, a stranger to the plaintiff. Even where the complaint Avhich contains the allegation is verified by the plaintiff’s agent or attorney, the latter, must speak of his own knoAvledge, or set forth “ in the affidavit the grounds of his belief as to- all matters not stated upon his knowledge, and the reason why it is not made by the party.” Code Civ. Proc. § 526.

Now, what have we here ? Averment, and averment alone, without proof or statement tending to constitute proof. The plaintiff shows nothing Avhatever by affidavit. lie simply deposes to his naked assertion of the existence of certain facts. True, he is the plaintiff. But, so far as the attempt to shoAV- a cause of action by affidavit is concerned, he is a total stranger to the transaction between his assignor and the defendant. His affidavit is quite sufficient as to the assignment to himself. In all other respects, it is the mere sworn assertion of a stranger, unsupported by a particle of proof. When this distinction between averment and proof is kept in mind, the Ladenburg Case, 5 App. Div. 219, and the case of Hanson v. Marcus, 8 App. 318, 40 N. Y. Supp. 951, will be found to be entirely in harmony with the conclusions here arrived at. The affidavit in the Ladenburg Case was made by a member of the plaintiff’s firm about a matter of firm business, and was therefore presumptively made upon knowledge. His verified averment of the cause of action there sufficed. That was sufficient proof, by affidavit, of the existence of the cause of action to confer jurisdiction. Why ? Because the man was speaking about his own business; that is, about matters which ordinarily import knowledge. So in Hanson v. Marcus. The affiant “ was the duly-authorized agent, manager, and attorney in fact of the plaintiff.” There, too, the agent’s verified averment of the cause of action imported knowledge. The decision rested upon the presumption that a person who was the plaintiff’s agent, manager, and attorney in fact was the person who knew as to the condition of his affairs with the defendant.” This rule applies not only to an individual plaintiff and his general agent or attorney in fact, but to the officers or other agents of a corporation ; indeed, to any person who is shown by the affidavit to have been connected with the transaction which constitutes the cause of action, on the plaintiff’s behalf. Where, however, the affiant is neither the plaintiff nor his agent, manager, or attorney in fact,—where he is not, apparently, connected with the plaintiff or the transaction in any way,—his affidavit as to such transaction amounts to nothing more than a verified assertion; that is, an assertion which, for some undisclosed reason or upon some undisclosed information, he, believes to be true. The fair inference from the bald statement of A., standing alone and without any direct affirmation of personal knowledge, that B. has loaned money to C., is that A. speaks only from information which he credits. The courts have invariably held that such bald statements, although in form made positively, amounted to mere expressions of belief or opinion. Thus, in Tim v. Smith, 93 H. Y. 87, the moving creditor presented affidavits of certain attorneys stating unreservedly that, by virtue of a particular attachment, the sheriff attached property of the defendant. This was held to furnish no evidence of the fact. “ Such an affiant,” said Chief Judge Huger, “ does not necessarily have knowledge of, and cannot be presumed to know, the several fact's attempted to be established by his affidavit in this case.” So, in Thomas v. Dickinson (Sup.), 11 N. Y. Supp. 436, the affiant stated that, shortly after the sale of certain barrels of whisky by the plaintiffs to the defendants, they were pledged with a warehouse keeper, and an advance obtained thereon. The court, held that as the statements related to transactions between other persons, at which the affiant could not be presumed to-have been present, they furnished no reliable reason for-believing that they had been correctly stated. Mr. Justice Daniels, in that case, said that the fact that a witness states, transactions positively as being within his knowledge, when it can be seen that he does not possess that knowledge, were circumstances which- required the statements to be rejected. In Murphy v. Jock, 142. N. Y. 215, 58 S. R. 458, the question of knowledge was an underlying one. The affiant attempted to comply with the rule, and to give his information, he not. claiming to have knowledge of the main facts. In doing so, however, he stated positively that he had received this information from the plaintiff through the telephone. It was held that this unqualified statement was insufficient to confer jurisdiction, and that the affiant was bound to show how he knew what he thus asserted as upon knowledge.

The true test of the sufficiency of an affidavit is the possibility of assigning perjury upon it if false. People v. Becker, 20 N. Y. 354. This test is essentially applicable to affidavits; used to secure attachments.

It was well said by Lyon, J., in Miller v. Munson, 17 Am. Rep. 461, that:

“ The proceeding by attachment is very summary and violent. The ¡purpose of the law which requires that a certain affidavit be made before the writ can issue is to protect the-alleged debtor from so severe a process, unless the creditor or some person in his behalf, under the responsibilities of an oath, shall assert the existence of certain facts which the law adjudges good grounds for issuing the writ. This requirement of the law would afford the debtor no protection whatever, useless the affiant is liable to be punished criminally if he willfully swears falsely in such affidavit. Hence, although the-affidavit be in the very words of the statute, it is not sufficient, unless perjury can be assigned upon it.”

How, it maybe asked, could perjury be successfully assigned upon the affidavit in question ? Suppose the plaintiff’s assignor-had not sold the goods to the defendant, but this affiant had relied, in making his sworn assertion, upon what he reasonably deemed to be credible information ; could he be justly charged with having made an unqualified statement importing knowledge of that which he did not know to be true ? Clearly not. Even if the fact were true as alleged, it would be perjury to-make an unqualified statement of such fact which the affiant did not know to be true. The common-law rule upon the latter head, which is now embodied in the Penal Code (section 102), is quaintly put by Sir William Russell in his work on Crimes, as follows:

“ With respect to the falsity of the oath, it should be observed that it has been considered not to be material whether the fact which is sworn he in itself true or false ; for, howsoever the thing sworn may happen to prove agreeable to the truth, yet, if it were not known-to be so by him who swears to it, his offense is altogether as great as if it had been false, inasmuch as he willfully swears that he knows a thing to be true which at the same time he knows nothing of, and impudently endeavors to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he.” 1 Russ. Crimes, p. 204.

The fair inference from the present affidavit absolves the affiant from this “ impudent endeavor.” He lias attempted to impose upon no one. He neither says nor suggests that he was in Chicago on the 14th of May, 1896, or that he was present when the assignor’s agent and the defendant then and there made their bargain, or that he subsequently saw the goods delivered in Jersey City. What he says imports information as to the averment of a sale and delivery of the goods, not personal knowledge. Even if he were entirely ignorant as to the actual fact of such sale and delivery, he is, at least, innocent of any possible charge of having willfully sworn that he knew the fact as thus asserted to be true.

The question really does not deserve such elaborate consideration. It amounts to this: that we are asked to hold that a court should act judicially in a serious matter, upon less evidence than would be required by any sensible and prudent business man in the ordinary affairs of life. If a stranger should enter a business man’s office, and tell him that his interests were likely to be affected by a transaction which the stranger knew had occurred between A. and B., the business man would surely say : Who are you, and how do you know this ? ” Shall a court of justice authorize a citizen’s property to be seized before judgment, under the circumstances here presented, without saying as much ? The question answers itself.

The order appealed from was right, and it should be affirmed with costs.

YAH.BRHHT, P. J., and PATTERS OH and WILLIAMS, JJ., concur.

RUMSEY, J.

(dissenting).—The warrant of attachment in this case was granted upon the affidavit of the plaintiff, and the motion to vacate the attachment is made by a junior creditor, without any papers except a stipulation that he has a lien by attachment upon the same property as that upon which the attachment is granted in this action. The sole ground upon which the warrant was vacated was that the affidavit upon which it was granted was not sufficient. In form, the affidavit is all that could be desired. It states the facts which are required by the statute to entitle the plaintiff to the relief which he asks. It says that the defendant is a foreign corporation, having its office and principal place of business in Ohicago, in the state of Illinois; that before the 14th of Hay, 1896, at Chicago, the New York Standard Watch Company, through its agent, sold to the defendant certain goods, which were, on the 14th day of Hay, 1896, delivered at Jersey City to the defendant; that the goods were sold at the agreed and reasonable price of $214, which the defendant promised to pay ; and that no part thereof has been paid, although demanded. The affidavit further states that the cause of action was assigned to the plaintiff. The criticism upon this affidavit, and the ground upon which it has been held to be defective, is that, although the facts contained in it are stated positively by the plaintiff, yet his grounds of knowledge are not state*!, and it does not appear from what he says that he did have personal knowledge of the facts out of which grew the cause of action Avhich lies' at the foundation of his right to an attachment. It is to be noticed that there is nothing to contradict or disprove the allegations contained in the affidavit; and the question raised, therefore, is simply a technical one,-—whether it will be assumed, Avhere a fact is stated as of the personal knowledge of the affiant, that such fact does not exist, because the affiant has not, in addition to stating the fact, stated other facts from Avhich it could be made to appear that he must haAre knoAvn that whereof he spoke. The rule of law has always been with regard to the testimony of witnesses that, when one stated a fact as of his personal knowledge, it would be presumed that he had such knowledge, unless it appeared presumptively or by fair inference that he could not have had it, and that the allegations were not made upon it. Such Avas the rule laid down in Crowns v. Vail, 51 Hun, 204, 21 S. R. 209 ; in the case of ’an attachment. That has always been the rule applied in the interpretation of testimony. It has been applied in this court in the case of Ladenburg v. Bank, 5 App. Div. 219, and still more recently in Hanson v. Harcus, 8 App. Div. 318; 40 N. Y Supp. 951.

The case of Ladenburg v. Bank, supra, is precisely in point on this question. The action was brought upon certain drafts Avhich had been made by the defendant, a foreign corporation, payable in London, and which had been presented at the bank in London, Avhere they Avere payable for acceptance had not been accepted, and were protested for non-acceptance. It Avas necessary in that case for the plaintiff to show, as a part of his cause of action, that the drafts had been presented for acceptance, that acceptance had been refused, and that they had thereupon been protested. It was conceded that those tilings, if they occurred, must have occurred in the city of London; and it also Avas conceded that the plaintiff, upon whose affidavit alone the attachment Avas granted, had not been in the city of London, and therefore could not have been present when the facts which he testified to occurred. Upon that state of facts, the court beloiv refused to vacate the attachment. Upon an appeal taken to this court, it was strenuously insisted that the plaintiff could not have had knowledge of the facts which were stated in his affidavit, and that, mere-fore, it was error to have permitted the attachment to stand. The court say:

“ Knowledge such as the law requires in affidavits of the present description is not necessarily personal observation of the affiant plaintiff. That the bills of exchange were drawn in Newfoundland, and protested in London, while the affiant was in New York, this is the sum and substance of the defendant’s attack upon the affiant’s statements. The affidavit was made Hay 20, 1895, and the last of the bills was protested December 10, 1894. It was therefore quite possible that the bills, with the documentary evidence of protest, were in the possession of the affiant plaintiff when he made his affidavit; and, in view of his assertion of knowledge, we must assume sue h to be the case, in the absence of evidence to the contrary. If 1 ;e had these bills and notarial certificates of protest in his possession, his assertion of knowledge was not unfounded. That was knowledge within the sense of the statute.”

The necessary effect of that decision is that an affidavit » made as of the personal knowledge of the affiant is sufficient, unless it appears that he could not have had knowledge of the facts whereof he speaks, and that if the affiant could have had knowledge, derived in the ordinary course of business, of the truth of the thing which he testified to, it will be sufficient to sustain the attachment. There was no proof in that case that the plaintiff had the bills, with notarial certificates of protest; nor was there anything to show that he knew anything more on the subject than that he had received telegraphic advices from London that acceptance of the bills had been refused, and that they had been protested. But yet the court, for the purpose of sustaining the attachment, the plaintiff having testified positively to the facts, indulged in the presumption that he had the ordinary means of knowledge which would enable him to testify, not to what he saw done, but to the inferences which he might have drawn from the knowledge which he acquired, because he had in his hands evidence that the bills had been protested. That case was decided by a unanimous court after much consideration. It is not an extreme application of the rule, which was regarded as well settled, but it is the ordinary common-sense construction to be put upon an affidavit as to business matters when the facts alleged in them are not disputed. . The case was followed by this court in Hanson v. Marcus, 8 App. Div. 318, where the affidavit was made by one who was the duly-authorized agent of the plaintiff, and who stated as of his own knowledge the facts constituting the cause of action which appeared to haim been transacted between the defendants and the agent of the plaintiff. It did not appear, however, that the affiant was the agent. But the rule laid down in the Ladenburg Case was applied,—that statements in affidavits will be presumed to have been made upon personal knowledge except when stated to have been made upon information and belief, or where it appears affirmatively or by fair inference, upon the face of the affidavit itself, that the statements could not have been made, • and were not made upon personal knowledge.

Now,'what appears in this case ? The testimony of the plaintiff is positive that a transaction took place in Chicago shortly before the 14th of May, 1896. He does not say whether or not he himself was in Chicago at the time. For aught that appears in this case, not only may he have been there, but he may have, been the person who had the transaction which resulted in the sale of these goods to the defendant. It is not a violent presumption that men from New York go to Chicago, and do business there for corporations doing business in this state ; and it is a matter of every-day knowledge that men in New York do business each day, by word of mouth, with people in Chicago, through the telephone, one man being in Chicago, and the other in New York. So that when a man living in New York states, as of his personal knowledge, that something occurred in Chicago a few months before, it may fairly be inferred that he states what he knew, and, in the absence of any testimony contradicting it, his affidavit ought to be sufficient to warrant the court in taking action upon it. This is not an extension of the rule laid down in Ladenburg v. Bank, but it is simply a fair application of the ordinary common-sense rule which is to be applied to business transactions. It is to be remembered that the necessary result of that case is that personal knowledge is not required. Indeed, the opinion says so. All that is required is that the affiant should have such information as would enable him to establish the fact when called upon to prove it; and, if he has that knowledge, he need not state in his affidavit that he has any such knowledge (he did not state it in the Ladenburg Case), but it will be presumed that he did have it, and that he will be able to produce it upon the trial. When this affidavit was presented to the court, jurisdiction to grant the warrant was obtained (Laden-burg v. Bank, supra); and it then became necessary, before the attachment could be vacated, to disprove the facts thus positively testified to. No such evidence was given, and for that reason it was error on the part of the court ■ below to vacate the warrant. This action cannot be sustained unless we are prepared to overthrow the rule laid down in the cases Laden-burg v. Bank and Hanson v. Marcus, supra.

The order of the special term should be reversed, with $10 costs and disbursements.


author: VAN BRUNT, P. J.

text:
    New York City Baptist Mission Soc. v. Tabernacle Baptist Church, et al.

    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Appeal—Time of taking—Irregular judgment.
    . Failure to folio a judgment as required by general rule of practice 19 is a mere irregularity, and does not stop the running of the time within which an appeal from the judgment may be taken.
    Appeal from special term, New York County.
    Action by the New York City Baptist Mission Society against the Tabernacle Baptist Church and others to foreclose four mortgages, aggregating in amount §83,400. From an order denying a motion by defendants to compel plaintiff’s attorneys to receive notice, defendants appeal.
    F. H. Field, for appellants; E. S. Clinch, for respondent.
   VAN BRUNT, P. J.

—It is admitted that the time to appeal lias expired since the service upon the defendant of a copy of the judgment sought to be appealed from, and a written notice •of the entry thereof. It is urged, however, that the time did not commence to ran, because neither the j udgment, as entered, nor the copy served, was folioed as required by rule 19 of the general rules of practice. It is claimed that the clerk had no power to enter the judgment, and it was therefore void. This position, however, cannot he sustained. The want of folioing was a mere irregularity. The court that tried the case had directed the clerk to enter the judgment, and the clerk was bound to follow that direction. If the attorney for the defend•ant desired to take advantage of this irregularity, it was necessary for him to move to set aside the judgment, and the court, if the ends of justice required it, ivould grant the motion. But the judgment is not void. It was good as a judgment so long as it remained of record, and a copy of this judgment, with notice of entry thereof, was served. If the copy, served had been folioed, and the judgment entered had ■not been, it might very well have been claimed by the defendant that a copy of the judgment as entered had not been served upon him. Furthermore, if the attorney for the defendant desired to take advantage of the fact that the copy served upon him was not folioed, he was bound to return the same, and apprise the attorney for the plaintiff of the. irregularity complained of. As already stated, the failure to folio being a mere irregularity, not ousting the court of jurisdiction, so long as the judgment remained of record it was a good, judgment for all purposes, and would not be set aside because of this irregularity unless the ends of justice required it. The defendant has mistaken his remedy. He should have moved to vacate the judgment because of the irregularity.

The order should be affirmed, with $10 costs and disbursements.

All concur.