text:
    ALICE McCOSKER, Administratrix, etc., Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Inability of a railroad company to a servant for an injury caused by the negligence of a felloio-servant — when a servant is the alter ego of the company so as to render it liable for his negligence.

    This action was brought to recover damages for the negligent killing of the plaintiff’s intestate by the defendant. The deceased was at the time of his death a driller in the employ of the defendant, having been hired by and being under the immediate supervision and control of one Luke, whose duties included the hiring and discharging of the drillers, the making up of trains and the distribution of - cars in and about the yard and repair shops of the defendant. The immediate superior of Luke was the train dispatcher, who was himself under the control of the defendant’s general superintendent,
    Luke having received directions to send to the repair shop a car, one of the bumpers of which was so broken that it could not be coupled to another car by the ordinary method, ordered the deceased and another driller to go to the car, which was standing on a track in the yard, and fasten it with a chain to the nearest of four cars, which were standing on the same track detached from and to the east of it. While they were so engaged Luke signaled to an engineer to - back a train of ten cars, standing east of the four cars ; the engineer, without any signal or warning, backed the train against the four cars, pushing them against the deceased, and thereby occasioning the injuries from which he died.
    Held, that Luke stood in the place of the company; and that, as the deceased was killed by his negligent act, the defendant was liable to the plaintiff therefor.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for the death of plaintiff’s intestate, which was alleged to have been caused by the defendant’s negligence. Upon the trial no witnesses were sworn the facts being admitted by both parties. The following are the facts, as so admitted and agreed upon.

      Fi/rst. — That John McCosker, plaintiff’s intestate, was, at the time of his death, in the employ of the defendant as a driller in and about the defendant’s yard at Hunter’s Point. That the duties of the said McCosker, as such driller, were to assist in the making up of trains and the distribution of cars in and about the said yard and repair shops of the defendant.

      Second. — That the said McCosker had been hired by, and was under the immediate supervision and control of Rodney W. Luke, the yardmaster.

      Third. — That the duties of the said Luke included the hiring and discharging of drillers, the making up of trains, and the distribution of cars in and about the said yard and repair shops of the defendant, and that the said McCosker and others were employed by the defendant to assist the said Luke in the said duties. That the immediate superior of the said Luke in the service of the defendant was the train dispatcher, whose orders and instructions the said Luke was at all times bound to obey, and who was under the control of the general superintendent of the defendant.

      Fov/rth. — That on, or immediately prior to May 25, 1877, a certain caboose ear was brought into the yard from some point on defendant’s railroad, having the bumper upon its' easterly end so broken that it could not be coupled to another car by the ordinary method. That the said Luke, having on the day aforesaid received instructions from the defendant’s repair shop to send the said car to the said, shop (which was situate in the defendant’s yard at Hunter’s Point), for repairs to the said bumper, instructed the said McCosker and another driller to assist him, the said Luke, therein. That the said car was then stan ding at of near the westerly end of one of the tracks in the said yard. "Within a few feet to the easterly, and upon the same traek? stood four cars coupled together, but detached from the car with the broken bumper (these were flat cars about four feet high above the rail), and still .further to the easterly upon 'the same track stood a train of ten flat cars, each of the height aforesaid, and having an engine attached thereto at the easterly end, facing easterly. That the said Luke instructed the said McCosker and another driller to take a chain and attach the same to the said broken bumper, and also the car standing next easterly thereof, in order that the said broken car might be hauled to the repair shop. That while the said McCosker and the other driller were so engaged, the said Luke, who was standing near the engine, signaled the engineer to back his ’train. That the said engineer thei’eupon, without signal or warning, backed the said engine and train in a westerly direction in such manner that the rear car of the said train struck against the four detached cars, and forced the car next easterly of the car with the broken bumper backward upon and against the said McCosker, so that he was crushed between the said two cars last mentioned, and sustained injuries from which he subsequently died on June 5, 1811. That the said injuries were sustained at about half-past 11 o’clock in the morning of May 25, 1811. ■

      Fifth. — That the said Luke knew of the broken bumper before he gave the order to the deceased. That the said defect was patent and noticeable to any one familiar with railroad cars.

      Sixth. — That at the time of his death, the deceased was of the age of twenty-eight years, and received from the defendant a salary of $40 per month.

      Seventh. — That the deceased had been in the employ of the defendant as a driller for many years, and had always been found a sober and careful man.

      Eighth. — That the plaintiff is his widow and administratrix, and that she and an infant child are his only next of kin, and were wholly dependent on .the deceased for their maintenance and support.
    The stipulation and statement of facts having been read, the defendant’s counsel moved for a nonsuit, which was denied, and the defendant excepted.
    The jury rendered a verdict for the plaintiff for $5,000.

      Ed/wa/rd G. Sprague, for tlie appellant.
    The duties of the master to his servant are the following: 1. To use due diligence in providing proper and sufficient tools, machinery and apparatus for the use of servants. 2. To use due diligence in employing fellow-servants competent and sufficient in number, and in discharging such as he knows or ought to know to be incompetent. (Wright v. N. Y. G., 25 N. Y., 562, 565; De Forest v. Jewett, 19 Hun, 509.) All the cases in this State fall into one or the other of the classes above enumerated. The following are cases where the injury was caused by defective appliances. (Keegan v. Western JR. K., 8 N. Y.,. 175; Ryan v. Fowler, 24 Id., 410; Ooroorcm v. Holbrook, 59 Id., 517 ; Plcmk v. N. Y. G., '60 Id., 607 ; Mehcm v. S. B. dé If. Y., 73 Id., 585 ; Gage v. D. L. dé W., 14 Hun, 446; Ha/wley v. Northern Oent/ral, 17 Id., 115 ; Gone v. P. L. dé W., 15 Id., 172 ; Eagcm v. Tuoker, 18 Id., 347 ; Ocmnolly v. Poillon, 41 Barb., 366 ; Spelman v. Fisher Iron Go., 56 Id., 151; Kirkpat/riok v. N. Y. G., 9 N. Y. Weekly Dig., No. 15, p. 381; Fuller v. Jewett, 9 N. Y. Weekly Dig., No. 19, p. 443.) The following are cases where the injury was caused by an incompetent fellow-servant, or by an insufficient number of fellow-servants. {Laming v. N. Y. O., 49 1N. Y., 521; Briokner v. N. Y. G., 2 Bans., 506; Flike v. B. dé A., 53 N. Y., 549 ; Sprong v. B. dé A., 58 Id., 56; Booth v. B. dé A., 73 Id., 38 ; Harvey v. N. Y. O., 19 Hun, 556.) There is a class of cases which identify a fellow-servant with the master as his cdter ego or vice-principal. They are cases where the negligence was- indeed in fact the negligence of the fellow-servant, but was, in law, the negligence of the master, because it was a failure to perform the master's dni/y. {Oorcoran v. Holbrook, 59 N. Y., 517; Eagcm v. Tucker, 18 Hun, 347.) The fact that Luke held a position of some authority in defendant’s service, and that deceased was his subordinate, does not affect the relations of the two as fellow-servants. {Sherman v. Roch. dé Syracuse, 17 N. Y., 153 ; Bar~ ringer v. D. dé H, 19 Him, 216 ; Basel v. N. Y. G., 70 N. Y., 171; Wright v. N. Y. G., 25 Id., 562 ; Howells v. Steel Go., L. R., 10 Q. B., 62; Searle v. Lindsay, 11 C. B., N. S., 429.) The delegation to Luke of the master’s duty in hiring and discharging drillers, made Luke only the master pro tanto, and did not alter the relations of Luke and McOosker as fellow-servants in any other respect. {FUke v. B. da A., 53 N. Y., 553; Laming v. FT. Y. O., 49 Id., 521; Briolmer v. FT. Y. O., 2 Lans., 506; Bar-ringer v. D. da LL., 19 Hun, 216 ; Feltham v. England, L. R., 2 Q. B., 33 ; Wilson v. Merry, L. R., 1 Scotch App., 326 ; 8ea/t'le v. Lindsay, 11 C. B., N. S., 429 ; 19 Hun, 219.)

      OUfford A. H. Bartlett, for the respondent.
    The yardmaster hired the deceased, and had general supervision and control over the drillers at the Hunter’s Point yard. He was not a fellow-servant, but represented the company, and notice to him was notice to the defendant. (Shearman & Redfleld on Negligence, § 103; Basel v. FT. Y. G. da II. JR. B. Go., 70 N. Y., 171; FUke v. Boston da Albany jR. JR., 53 N. Y., 553; Laming v. JH. Y. Gen., 49 N. Y. 533; Briolmer v. FT. Y. G. JR. R., 2 Lans. 515, a£L, 49 N. Y., 672 ; Eagan v. Tucker, 18 Hun, 348, 349 ; Fort v. Whipple, 11 Hun, 586 ; Malone v. JBJatha/way, 64 N. Y., 9; Bradley v. B. R., 62 N. Y., 99; Booth v. B. da A. R. R., 73 N. Y., 40; Dobbin v. Richmond <& Danville R. R. Go., 81 N. C., 547; Devany v. Vtolcan Iron Works, St. Louis Court of Appeals [1877], 4 Mo. Appeals, 236; Whalen v. Gentenary Ohvrch, 62 Mo., 326; Gorrrdy v. Vulcan Iron Works, 61 Mo., 492; Mullen v. Philadelphia dc Southern Mall Steamship Go., 78 Penn., 26, 1875; Railway Go. v. Lews, 33 Ohio, 200; Railroad Go. v. Kearny, 3 Warren & Smith, Ohio, 226; Railway Company v. Fort, 17 Wall., 559 ; Ford v. Fitchburg R. R., 110 Mass., 260, 1872; Chicago da Ff. W. R. R. v. Bayfield, 1877, 37 Mich., 213; Berea Stove Go. v. Graft, 31 Ohio, 292; Brabbits v. Ghicago da JV. West. R., 38 Wis. 289; Harvey v. Ff. Y. C. da II. R. R., 19 Hun, 559 ; Hough v. Texas da Pacific R. R. Go., 12 Chicago Leg. News, No. 20, p. 167.)
    The relation of master and servant admits the right of one person to control the actions of another, which right implies the power to discharge. The power to discharge, therefore, is the true test to determine whether the relation of master and servant exists. (Michael v. Stanton, 3 Hun, 464; Pcrnlet v. Rutland da Washing

      ton JR. JR., 28 Vt., 300 ; Qua/nncj/n v. Burnett, 6 Mees. & W., 509; JEJUJÁard v. JRieha/rdson, 69 Mass., 366; JMJorga/n -v. Bowma/n, 22 Mo., 550.)
   Barrett, J.:

The difficulty in this class of cases is in applying well settled rules to ever-varying facts. That a master is not liable to his servant for the negligence of a fellow-servant is a general proposition which now admits of no question. Nor is it qualified by the circumstance, that the sufferer happens to be inferior in grade to, and subject to the orders of, such negligent fellow-servant.

For his own personal negligence, however, the master is as much liable to his servant as he is to a stranger. And he may be guilty of such personal negligence either in propria persona, or by the act of an agent to whom he has exclusively confided his business. In the latter case, the agent is treated as the mastez-’s alter ego. It is not infrequently a pei’plexing question whether the person1 is in reality such alter ego or the injured employee’s fellow-servant of a supeiior grade. TJpon the solution of that question, the decision of the present appeal depends. It is to be observed that the cases draw a distinction between individuals and coi’poi’ations. The former may, in person, superintend their own woi’k, while the latter, necessarily, act by and threugh agents. Nor is such corporate agency confined to the stat/us of a general superintendent. The corporation may have many departments of business or branches of seiwice, requiring in each a competent executive head. So, a particular department, furnished with a genei’al head, may be made up of various minor departments, which are the subject of separate and distinct agencies. Each of the minor agents may be the company’s representative and alter ego pro hae mee. Such heads of minor departments must not be confused with foremen, head brakemen or other upper servants. The test is largely in the power to employ and discharge subalterns, also in the independence with which the function is exercised. Even the latter need not be absolute. There may, indeed., be general instructions from a higher agent, yet the subordinate agent may be supreme in the matter of execution.

In the case at bar, the injury was caused by the negligence of the yard-master Luke. This negligence was direct and personal. With knowledge of the broken bumper, he gave the signal which, in the backing of the engine and train that followed, caused the accident. The plaintiff’s intestate was a driller, employed by the defendant. He had been hired by Luke, and was under the latter’s immediate supervision and control. Luke’s duties included the hiring and discharging of drillers as well as the making up of the trains, and the distribution of cars in and about the defendant’s yard and repair shops. We are of opinion that these facts bring the case within the alter ego principle. Luke was not, in any j ust sense, McCosker’s fellow-servant even of a higher grade; there may have been a foreman or head driller coming within this category. But that was not Luke’s position. He was the responsible head of that subdivision of the service. The making up of trains and the distribution of cars were evidently important details, requiring method, arrangement and foresight. For these, the company looked to Luke. To insure prompt and unquestioning obedience, the power of appointment and removal, so characteristic of the master, were conferred upon him. It is true that he had a superior in the train dispatcher, who in turn was controlled by the general superintendent. But the duties of each were marked and independent. Even the superintendent was naturally under the general direction of the president, while the latter was subject to the board of directors. Yet each represented the company in his appropriate sphere. So in a minor degree did the yardmaster. He of course took his orders from the train despatcher, as to the number, character, time and extent of the trains to be made up. But he executed those orders in his own way, according to methods of his own devising, and through servants of his own choosing. That under

these circumstances, he stood in the place of the company pro hoe vice seems to us to be reasonably clear. The cases support this view. (Brickner v. New York Central R. Co., 2 Lans., 515; affirmed, 49 N. Y., 672; Laning v. The Same, Id., 521; Flike v. B. & A. R. Co., 53 Id., 549; Malone v. Hathaway, 64 Id., 5; Beset v. N. Y. C. R. Co., 70 Id., 171; Booth v. B. & A. R. Co., 73 Id., 40; Fort v. Whipple, 11 Hun, 586; Eagan v. Tucker, 18 Id., 348. And see Mullan v. Phil. & S. M. S. Co., 78 Penn., 26 ; Railway Co. v. Laws, 33 Ohio, 200; Railroad Co. v. Keary, 3 Warren & Smith [Ohio], 209, et seq.; Dobbin v. Richmond & Danville R. R. Co., 81 N. C., 547.)

In Laning's case the company was held for the improper retention by an agent, whose duty it was to employ subordinates, of an intemperate foreman, through whose bad habits the plaintiff received the injury complained of. If the company was liable for this agent’s negligence in permitting the work to be done by incompetent men it would certainly have been liable if he had directed it himself, and in giving such directions had been guilty of personal negligence.

Flike's case seems to be almost directly in point. It was there decided that a “head conductor,” whose business it was to hire and station brakemen, and make up, prepare and dispatch the morning trains, represented the corporation; and that his acts should be regarded as those of the company, and not of a co-servant. The company was there held, because the head conductor started the train with an insufficient number of brakemen. It would have been equally liable, if the accident had been caused by his negligent direction to the brakemen.

The correctness of these views was not doubted in Besel v. N. Y. C. R. Co. (supra). In the latter case, the yardmaster was not guilty of negligence, nor did he occupy the place of the corporation in the distribution and removal of cars. (Op. Miller, J., 175.) There, too, the powers and duties of the yardmaster, were not nearly as extensive as in the present instance. Miller, J., observes that he had no control in starting or in the distribution of the cars ; . . . “ he employed the men who distributed the cars, but not the car repairers.” The accident was caused by the absence of a sufficient number of brakemen on the top of the cars, but the yardmaster “ had no especial duty or power in this respect.” Booth v. B. & A. R. Co., re-affirms the rule laid down in Flike's case. Barringer v. Delaware & Hudson Canal Co. (19 Hun, 216), is relied on by the appellant. That was a case of a foreman, a servant merely of a higher grade; he was employed by, and reported directly .to, tbe trackmaster. lie was not independent witbin bis sphere, but was under the orders of the trackmaster, not only as to what he should do, tut as to how he should do it. The trackmaster superintended the track, employed this foremmi, and other proper men, and furnished the necessary tools and machinery. The foreman had no independent responsibility, except the care of the tools and machinery which he used. Even for these he applied to the track-master, and when they gave out or became defective, he was ordered to take them to the shop and have them repaired. The case is not .at all parallel with the present. The position of the trackmaster there was more like that of the yardmaster here.

The attempt to impress upon Luke’s acts a dual character, — namely, that of the company’s representative up to a certain point, and that of fellow-servant beyond, — is fully answered by the criticism of Church, Ch. J., upon asimilar contention in the Flike case. “ The acts of Rockefeller cannot be divided up, and a part of them regarded as those of the company and the other part as those of a co-servant merely, for the obvious reason that all his acts constituted but a single duty. His acts are indivisible, and the attempt to create a distinction in their character would involve a refinement in favor of corporate immunity not warranted by reason or authority.” It may further be observed that Luke was not working with the drillers when the accident occurred. He gave the signal, which caused the accident, in his capacity as chief of his special department. In doing so, to quote again from the opinion in Elike’s case, he occupied “ the place of the corporation, and the latter should te deemed fresentf and consequently liable for the manner in which the act was performed. Luke’s act in giving the signal was in fact the act of the corporation.

There being no other point in the case of any importance, the judgment should be affirmed, with costs.

Beady and DaNiels, JJ., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    GORDON GRANT, Plaintiff, v. ALMON W. GRISWOLD and FREDERICK A. COE, Defendants.

      Power of the court to allow a judgment to he entered against a party after Ms death — when an application to amend a judgment should he denied on account of the laches of the applicant.

    This action was commenced in November, 1869, to foreclose a mortgage, the plaintiff praying for a judgment for any deficiency that might arise upon a sale, against the defendant Griswold, the mortgagor, and against the defendant Coe, upon an independent guaranty executed by him. Coe died on January 9, 1870. On January 20, the court directed the usual judgment of foreclosure and sale to be entered, as of January 6, 1870, nunc pro tunc. This judgment contained no provision charging the defendant, Coe, with' any deficiency.
    Upon a sale, had in 1877, a large deficiency arose, the premises being purchased by one Wm. H. Grant, who was,. upon the death of the original plaintiff, in 1878, appointed his executor. Thereafter, and on December 24, 1879, he, as such executor, moved to amend the said judgment, nunc pro tunc, as of January 6, 1870, by inserting therein a provision charging the said Coe witli any deficiency that might arise upon the sale.
    Beld, that tbe court.had no power to grant the motion,, as the application, though in form one for leave to amend the. judgment, was in reality one for leave to enter an original judgment, by default, against Coe, some ten years after his death.
    That even if the court had power to make the order, it erred in exercising it in this case, as no excuse was given for the long delay in making the application.
    Appeal from an order of tbe Special Term, directing tbe entry of a judgment for a deficiency against Frederick A. Coe, now-deceased, nrmc pro timo, as of January 6, 1870.

      WilUam G. Wilson, for Ann E. Coe, executrix, appellant.

      WilUam Mitchell, Jr., for William H. Grant, executor, respondent.
   Barrett, J.:

Tbis is an appeal from an order directing that tbe judgment in this action be amended so as to charge Frederick A. Coe’s estate with a deficiency.

This action was for the foreclosure of a mortgage made by Gris-wold. It was commenced in November, 1869, by the service of process on both Griswold and Coe. A deficiency judgment was prayed for against Coe upon an averment of an independent guaranty on his part. Coe died on January 9, 1870, before judgment. The usual judgment of foreclosure and sale wras entered on January 20, 1870, but the court, for some unexplained reason, directed it to be entered as of January 6, 1870, nunc pro turne. This judgment contained no provision charging Coe with any deficiency. The sale was delayed until November, 1877, when the premises were purchased by William II. Grant. A large deficiency was the result. Gordon Grant, the .plaintiff, died in December, 1878, and William II. Grant (the same person who purchased the premises) was appointed sole executor under his will. After an attempt at negotiation, not necessary to particularize, Grant, as executor, on December 24, 1879, moved to amend the original judgment, nuno pro turne, as of June 20, 1870, so as to make Mrs. Coe, as Coe’s executrix, liable for the deficiency. Upon that motion the following order (from which Mrs. Coe now appeals) was made:

“ It is ordered, and this court, by virtue-of the power and authority in it vested, does hereby order, that the judgment entered in the above-entitled action, June 20, 1870, mmepro tunc, as of January 6, 1870, be amended, nunc pro tunc, as of January 6, 1870, as follows, viz.: by making, after the following words therein, viz.: ‘The said referee specify the amount of such deficiency in his report of sale, and that the defendant, Almon W. Griswold, pay the same to the plaintiff,’ the following addition, viz.: -‘And it appearing that the defendant, Frederick A. Coe, is also separately liable for said deficiency under his guaranty, set forth in the complaint in this action, and is also in default after due service of a summons and complaint herein, for want of any appearance, answer or demurrer, it is further ordered that the said Frederick A. Coe is liable to pay, and that he pay such deficiency to the plaintiff.’ ”

The order contained other provisions, which must stand or fall with that which has been quoted.

1. The first question presented by this appeal is, whether the court had authority to make the order. We think not. The fallacy of the respondent’s position lies in the assumption that what he asked and obtained was in reality an amendment to the original decree. Such was not the fact. Mr. Coe’s position as a defendant, sought to he charged upon a collateral obligation, was an independent one. It must not be confused with the situation of the necessary parties to the foreclosure proceeding. The judgment of foreclosure and sale was one tiling. A judgment enforcing Mr. Coe’s guaranty in personam was quite another. Now, here was a judgment of foreclosure and sale, complete and perfect in itself, and needing no amendment. But there was no judgment of any kind, regular or irregular, void or voidable, against Mr. Coe. There was not even an attempt to enter such a judgment. As to him it was substantially the same as though he had died in default (but with no judgment yet entered up) in a common law action on the guaranty. The order, though purporting merely to amend the judgment of foreclosure, contains in effect a direction to enter an original judgment on Coe’s default some ten years after his death —to enter it, too, as of a date prior to his death, and thus, by relation back, to surmount the obstacle of one dead man recovering a judgment against another. In no just sense was this an amendment; for as to Mr". Coe, there was nothing to amend. It follows that none of the citations furnished by the learned counsel for the respondent are applicable. We have, however, looked at all these authorities (Code Civ. Pro., § 721, subd. 11, 12; §§ 722, 723, 724; Hogan v. Hoyt, 37 N. Y., 300; Bank of Newburgh v. Seymour, 14 Johns., 219 ; Hart v. Reynolds, 3 Cow., 42, note; Seaman v. Drake, 1 Caines, 9 ; Close v. Gillespey, 3 Johns., 526; Pelham v. Hemming, Cro. Car., 594; Thompson v. Kessel, 30 N. Y., 383 ; Hunt v. Grant, 19 Wend., 90; Chichester v. Cande, 3 Cow., 39; Cox v. New York Central & H. R. R. R. Co., 63 N. Y., 420), and find that they simply hold the familiar doctrine that a judgment may be amended in furtherance of justice. In Bank of Newburgh v. Seymour, a defendant’s name was added, but the party was alive, and the judgment was substantially upon confession, — i. e., by bond and warrant of attorney. In Hart v. Reynolds, there was a mistake in the defendant’s Christian name, and the amendment was granted on his consent, notwithstanding the opposition of subsequent judgment creditors. There are many other instances of similar amendments, —such as permitting the judgment to be signed by the clerk, or the plea .by the attorney, nunc pro j/wnc. The citation of cases under the old practice was unnecessary, for the power of amendment is now far more liberal and extended. If there had been any informality in the present judgment — any defect, omission, imperfection or mistake arising from the default or negligence of the clerk of the court, or of the plaintiff’s attorney, — it could, of course, have been cured under the broad and comprehensive provisions of the Code. But the entire absence of a judgment in personam against Mr. Coe was not a defect nor an omission or imperfection therein. The proceedings and judgment are perfect, notwithstanding the absence of such personal judgment. It seems very clear that a judgment, which, as already remarked, was not even aittempted to be entered, cannot be retroactively created, under the guise of an amendment to the foreclosure proceedings.

These observations are equally applicable to the existing stains, when the original judgment of foreclosure was entered. Mr. Coe was then dead, and no judgment could have been lawfully entered against him. There was no power in the court, either inherent or statutory, to direct any such judgment as of a date prior to his decease. This was explicitly held in Livingston v. Rendall (59 Barb., 493), where the case of Nichols v. Chapman (9 Wend., 455) was considered, and the doctrine there enunciated, of relation back to the first day of the preceding term, found to be wholly inapplicable to the present system. (And see Code Civ. Pro., § 1210, with Mr. Throop’s note on Immgston v. Rendall, showing his intention to keep, the section in harmony with this case.) The court certainly has no inherent power to enter judgment directly against a party deceased. This is impliedly conceded in all the cases. It results from their exclusive leaning upon the statute and strict application thereof. (Lewis v. Rapelyea, 1 Barb., 29 ; Warren v. Eddy, 13 Abb. Pr. 28 ; Burhans v. Burhans, 10 Wend., 601; Spalding v. Congdon, 18 Id., 543 ; North v. Pepper, 20 Id., 611; Dowbiggin v. Harrison, 10 Barn. & Cres., 480.) The only exception is where a party dies after verdict, and before the decision on a motion for a new trial. There the court has inherent power to direct the entry of judgment as of a date preceding such death. (Ryghtmyre v. Durham, 12 Wend., 245.) The' reason of the latter rule is, that the party shall not be prejudiced by the delay of the court in giving judgment, if it can be avoided. (2 Tidd, 965.) To prevent that, as was said by Cookburn, Ch. J., in Moor v. Roberts (3 C. B., N. S., 845), it is to be treated as though the appellate action had taken place at the.trial. Such a proceeding, he remarks, is “ not under the statutes, but under the ordinary inherent jurisdiction of the court. The whole is tó be taken to have been done at the trial.”

Then, as to the statute. The provisions of the Revised Statutes (2 R. S., 387, § 4), permitting final judgment in the names of the original parties, within two terms, after verdict or plea, notwithstanding the death of either party, applied only to a verdict or plea of confession. Even a nonsuit was not included (Spalding v. Congdon, supra, and see Dowbiggin v. Harrison, supra), much less an ordinary default. Indeed, the following section (§ 5) expressly provides that nothing in section 4 “ shall be construed to authorize the entry of a judgment against any party who shall have died before g verdict actually rendered against him, notwithstanding he may have died on the first or any other day of the term or sitting of the court at which such verdict shall have been taken, but such verdict shall be absolutely void.”

These provisions have been adapted to the present system by section 763 of the Code of Civil Procedure. That section reads as fob lows : Sec. 763. If either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdAct, report or decision or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties; unless the offer, verdict, report or decision, or the interlocutory judgment is set aside.” This also excludes an ordinary default. An accepted offer to allow judgment ” is a substitute for the old plea of confession. It has a precise meaning, and refers to the formal and specific procedure under section 738. The words “ verdict, report or decision ” cover trial by jury, by a referee, or by a single judge. This becomes still clearer when we read in section 765 that “ This title does not authorize the entry of a judgment against a party who dies before a verdict, report or de cisión is actually rendered agai/nst him. In that case, the verdict, report or decision is absolutely void.” The learned counsel for the respondent insists that Coe’s default was equivalent to a confession of judgment; we cannot agree that the same effect should be given to mere inaction, as to a distinct affirmative act. But even if this were so, it would not avail the respondent, for it is expressly provided in section 1275 (lest there should be a doubt on that head, as Mr. Throop observes) that judgments shell not be entered upon confession after the defend<mfs death.

It is entirely clear, therefore, that the court had no authority on January 20, 1870, to enter a judgment for deficiency against Mr. Coe, either directly or indirectly by relation back to a date prior to his death. Such a judgment would have been void. Thus there was no omission on the part of the plaintiff’s attorney. He entered the only judgment he then had a right to enter. Any further proceeding upon the guaranty would have necessitated the bringing in of Mr. Coe’s representatives. In Harrison v. Simons (3 Edw. Ch., 394), the vice-chancellor held that there was no occasion to revive where the mortgagor dies after decree-and before enrollment. That he said was becancse the decree was only to be enforced against the property by a sale and conveyance of title to a purchaser. He admits, however, that if even the decree remained' to be enforced in personam, it might be necessary to revive and bring in the personal representatives of the deceased. This case was approved of in Hays v. Thomas (56 N. Y. 521). It leaves no doubt whatever "as to the necessity for revival before decree. If, then, a judgment entered against Coe personally on the 20th, as of the 6th of January, 1870, would have been void, a fortiori, a judgment directed upwards of ten years after his death, with the intermediate incident of the plaintiff ’s death, would be void.

(2) But even if the court had power, it should not exercise it in such a case. We have carefully considered the affidavits and papers before us and are of opinion that there is not a particle of legal evidence tending to show Mr. Gordon Grant’s ignorance of the true state of affairs. Indeed, the probabilities are all the other way. Nor is there any good reason to believe that he would have made or countenanced any such motion as the present. Upon the whole, we think that Mr. Gordon Grant’s representatives may well be left to their strict legal rights, unaided by the special or extraordinary favor of the court.

The order appealed from should therefore be reversed, with $10 costs and the disbursements of the appeal, and the motion to amend the judgment be denied, with $10 costs.

Davis, P. J., and Ingalls, J., concurred.

Order reversed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SAMMONS v. BENJAMIN C. WANDELL and others, composing the Court of Sessions of the City and County of New York.

      Trial by a Court of Special Sessions — unanimity of the magistrates composing it is not essential to a conviction — an infant may elect to be tried by the Special Sessions.

    Where one charged with petit larceny elects to be tried by a Court of Special Sessions, it is not essential to the validity of a conviction that all the magistrates should concur therein; the judgment of the majority is the judgment of the court.
    An infant accused of petit larceny may waive his right to a trial by jury, and elect to be tried by a Court of Special Sessions.
    Certiorari to the Court of Special Sessions to review the conviction of the defendant, who was there charged with petit larceny.

      B. K. Phelps, for the people.

      p[. Momson, for the defendant.
   Barrett, J.:

The guilt of the accused was clearly established. His possession of the property, shortly after the' taking; was a serious fact, and one calling for explanation. Unfortunately for the accused, the explanation was lame and suspicious. When intercepted by the police officer, he prevaricated as to where he found the cigars, and, although examined at the trial upon his own behalf, gave no account of the circumstances attending the finding. He simply says that his friends, with whom he had been conversing late at night, left him, and he then “ went up home ” and “ found the cigars.”

The point that unanimity of the magistrates was essential to a conviction is not well taken. There is no provision of law requiring such unanimity either for conviction or acquittal. So long as the court had jurisdiction to try and condemn the offender, without tbe intervention of a jury, it proceeded upon the ordinary principle governing judicial action in bcmo, viz.: that the judgment of the majority is the judgment of the court. It is not questioned that the statute authorizing this mode of trial for certain petty offenses is constitutional. (Murphy v. People, 2 Cow., 815 ; People v. Goodwin, 5 Wend., 251.) Under it, the party elects to be tried by the Court of Special Sessions, and, to give effect to his election, expressly waives a jury trial. The court then, in legal contemplar tion, proceeds as a court, mid not as a jury. Were this otherwise, the proceedings might, at any moment, be obstructed and, indeed, summarily stopped. A single magistrate could prevent a ruling upon the admission or rejection of evidence, or upon a motion to dismiss. Even after conviction, non-concurrence as to the punishment would be sufficient to block the wheels of justice. It cannot be said that, in these matters of illustration, the magistrates act as judges, while in convicting they act as a jury. Their functions cannot be severed either in theory or practice. They act throughout as a court. What the law requires is, not the concurrence but the presence and deliberation of all three. (Laws of 1858, ch. 282, § 8.) And it evidently contemplates the exercise of judicial power, in general, by the majority, for we find a special provision requiring concurrence of all with regard to a particular matter, viz.: uthe remission of fines. (Laws of 1859, eh. 491, § 4.) A recognition of majority action will also be found in the general provisions concerning courts of special sessions (2 B. S., 716, § 31), where it is provided that the judgment shall be executed “ by virtue of a warrant under the hands of the magistrates who held the court, or a magorii/y of them.” By a subsequent . enactment, with reference to the Court of Special Sessions in this city, a warrant tested in the name of any one of the justices and signed by the clerk is sufficient. (Laws of 1859, eh. 491, § 2.) In proceedings in civil cases, it is expressly provided that a majority may exercise the power conferred upon three or more persons. (2 R. S., 555, § 27.) Upon the whole, testing this question by legal analogies, as well 'as by the implication to be drawn from the express provisions which have been referred to, we have no doubt, that the long prevailing practice, now questioned for the first time, is correct, and that the judgment of the court was lawfully pronounced by a majority of the magistrates who participated in the trial.

The point as to the defendant’s inability to elect or waive is not up; the record does not disclose his minority. But we have no doubt, that the rule governing the infant’s civil relations has no bearing. If above the age when criminal responsibility attaches, the infant appears and defends in person or by attorney. It has even been held to be error to assign him a guardian, and to try the case upon a plea pleaded for him by the guardian. (Ward v. Commonwealth, 3 Leigh, 743.) His right to elect the mode of trial is an incident to the right to defend in person. As a further incident, the infant must plead, and consequently he may plead guilty. Indeed, such pleas are frequently accepted, and that without question. If he has capacity to plead guilty, a fortiori to elect how he shall be tried. The judgment must be affirmed.

Beady and Daniels, JJ., concurred.

Judgment affirmed.


author: Braky, J.: ' Davis, P. J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel. SIDNEY P. NICHOLS, Respondent, v. EDWARD COOPER, as Mayor of the City of New York, Appellant.

      Removal of officers by the mayor of New Yorh — section 25 of chapter 885 of 1878 — a removal thereunden' is reviewable on certiorari — e&rtiorwri may issue before the gov&mor has acted upon the removal,

      Section 25 of chapter 835 of 1878, — -the charter of the city of New York,— provides that “ the heads of all departments . . and all other persons, whose appointment is in this section provided for, may be removed by the mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval- of the governor, expressed in writing. The mayor shall, in all cases, communicate to the governor, in writing, his reasons for such removal.”
    Reid, that the proceedings of the mayor in removing a person from his office, in pursuance of the said section, were not final and conclusive, but were reviewable by the court upon .a certiorari issued upon the application of the party aggrieved.
    That the proceedings of the mayor in so removing an officer were reviewable by certiorari, though at the time of the issuing of the writ, such removal had not been either approved or disapproved by the governor, to whom the record of the proceedings had before the mayor, had been by him transmitted. (Davis, P. J., dissenting.)
    Appeal from a judgment reversing proceedings had before the Mayor of New York, by which the relator was removed from his office as one of the Police Commissioners of the said city.
    On March Id, 1879, Edward Cooper, as Mayor of the city of New York, sent to Sidney P. Nichols, then one of the Police Commissioners thereof, a communication in writing, stating the existence of certain facts, which, in the judgment of the Mayor, warranted the removal of Mr. Nichols from office. In the same communication the Mayor designated March 19 as the time, and the Mayor’s office as the place, at which Mr. Nichols would have an opportunity to be heard upon the alleged causes of removal. At the time appointed for the hearing the Mayor refused to allow Mr. Nichols to appear by counsel or to summon and cross-examine witnesses.
    On April .5, the Mayor sent to the Governor a certificate, setting forth certain matters stated to have been found by him, including a finding of negligence on the part of Mr. Nichols in the discharge of his official duties, and certifying that for cause, after opportunity to be heard bfeing afforded to Mr. Nichols, and after actually hearing him, he had removed Mr. Nichols from the office of Police Commissioner. In May Mr. Nichols, by his attorneys, notified the Governor and the Mayor of his intention to apply, at a Special Term of this court, to be held at Albany, in June, for a writ of certiorari to issue to both the Governor and the Mayor, and founded his application upon an affidavit made by himself, which set forth all the proceedings of the Mayor upon which his removal was based. On June 2, the application for the writ was argued before Mr. Justice Westbrook, at Albany, by counsel for Mr. Nichols, and by the attorney-general on behalf of the Governor, and by counsel for the Mayor, and thereafter, ■ and on August 12, Judge Westbrook granted the writ. On the same day, August 12, an order was entered in Albany county, directing the clerk of the court to issue a writ of certiorari directed to Edward Cooper, Mayor of the city of New York, and returnable before the Special Term of this court, at the court-house, in the city 'of New York, on the first Monday of September, thereafter. On August 30, an appeal was taken by the Mayor from the order allowing the writ, to the General Term of the Third Department, and on September i, relator’s counsel filed a stipulation to argue such appeal, at the October Term in the First District. On September 20, an Extraordinary General Term, appointed by the Governor, met, and, on application of respondent, granted an order to show cause why a writ of prohibition should not be issued by that court, prohibiting and restraining, among other things, the Special Term at Chambers from hearing and determining the questions arising upon the writ of certiorari granted by Justice West-brook ; and, on September 25, argument was had thereon, and the writ granted. (18 Hun, 530.)
    At the October General Term the appeal from the order directing the writ to issue was heard, and the order affirmed. (19 Hun, Ml.)
    An appeal was taken from the order of the Extraordinary General Term granting the writ of prohibition, to the Court of Appeals, where it was reversed, in January, 1880.
    Upon a hearing upon the return to the writ of certiorari had before Mr. Justice Lawrence at a Special Term in the First district, in February, the judgment from which this appeal was taken was directed to be entered.

      F. N. Bangs, for the appellant.
    The existing provisions of the city charter, by their reasonable construction, and by necessary implication, exclude the court from interfering with the process of removal while the subject is under the consideration of the Governor. (Pousmcm v. St. Paul, 22 Minn., 387; Rex v. Sparrow, 2 Durnford & East, 196, n.; Matter of Eighteenth Street, 17 Abb. Pr., 264; Bogert v. The Mayor, 7 Oowen, 158; Oarr v. Tweedy, Hempstead [Ark.], 287.) It is inconsistent with established rules of procedure, and beyond the limits of jurisdiction heretofore observed in certiorari cases, for the court to undertake .a review of the process while it is incomplete, imperfect and inchoate; and for that reason the writ should have been quashed. {Murdoch v. Phillips Academy, 7 Pickering, 303; State v. MedAcal Society, 38 N. J. L., 377;. People v. Reddy, 43 Barb., 539; People v. Walter, 68 N. Y., 407.) The writ issued prematurely, i. e., at too early a stage of the proceedings. It should issue only to review final, effective and operative judgments, not intermediate or interlocutory rulings. It is not its object to correct errors in the admission, but in the application, of evidence. {Bynde v. Noble, 20 Johns., 80 ; IIoAnes v. Bachus, 4 Wend., 213 ; Stone y. The Mayor, 25 Id., 168 ; People v. Pilot Board, 37 Barb., 126; People v. Supervisors, 43 Id., 232 ; People v. Reddy, 43 Id., 539 ; People v. Commissioners, 30 N. Y., 72; Ouyler v. Trustees, 5 T. & C., 609.) The court can give no' practical remedy in this case. It cannot award-restitution. {Banh of United States v. Banih of Washington, 6 Peters, 8; Stafford v. Stevens, 2 Wend., 159; Costar v. Peters, 7 Robt., 386.)

      J. D. Townsend, for the respondent.
   Braky, J.: '

The questions affecting the proceeding which has culminated in the judgment from which this appeal is taken, have been considered by this court, and by the Court; of Appeals. Eor reasons assigned by this court, a writ of prohibition was issued to the Special Term at Chambers to prevent the hearing, otherwise secured by law in that branch of the court, under the certiorari which was issued against the Mayor.

Upon the motion for the writ, various questions were presented for the consideration of the court, and among others, the propriety of continuing tlie proceeding by a certiorari against the Mayor aione, when by the statute, to which reference will hereafter be made, the approval of the Governor of the judgment of the Mayor was necessary to perfect the proceeding to which the certiorari related. The writ of prohibition having been granted, and an appeal having been taken to the Court of Appeals, the views presented to this court by the counsel for the Mayor were substantially reiterated in the latter court. By the judgment of that court, the writ of prohibition was quashed, and, although all the questions presented were not perhaps fully considered, nevertheless, it was distinctly said in that review, that tlie proceeding conducted by tfie Mayor for the removal of the respondent herein was judicial in its character; and, as a necessary consequence, was subject to review by a writ of certiorari issued to the Supreme Court in the exercise of its supervisory powers over inferior tribunals, and persons exercising judicial functions. (Matter of Roberts, 53 how. Pr., 200.) And on an appeal to this court from the order of Mr. Justice Westbrook granting the certiorari, in which it was again urged, on behalf of the Mayor, that the writ should not be sanctioned, because it was issued against him only, this court said, in rendering its decision, among other things: “We are of the opinion that a writ of certiorari may properly be sued out to review the action of the mayor in eases of this character. The allowance of such a writ rests in the sound discretion of the court to which application is made, and this court will not interfere ■with the exercise of such discretion in allowing the writ where it does not appear that it has been palpably abused. Without considering, or in any manner passing upon the merits of the ease, which we think are not properly before us for that ’purpose, we dispose of the case upon the ground simply that a writ of certiorari would lie in such a case as tins,'and that the action of the court in granting the samé was not an abuse of its discretion. In,respect to the directing the return to be made, it is sufficient to say that a return was made and filed, and that, by the writ of prohibition heretofore granted in the case, the trial of the merits of the proceeding v/as sent to the proper tribunal,” etc. The right, therefore, of tlie respondent to proceed by certiorari in tbe manner adopted, seems to be settled, beyond all peradventure, both by this court and by the Court of’ Appeals. And such a judgment having been pronounced, it would seem also to follow, as a natural legal sequence, that whatever the respondent is entitled to in the form of a judgment should be granted without any further consideration of the supposed defect or error in issuing the writ prior to the judgment of approval to be expressed by the Governor under the statute referred to. In other words, that upon the certiorari, without reference to any question as to the manner or form in which it was issued, a judgment should lie pronounced upon the merits of the controversy, which was done in the court below.

The appellant’s counsel contends, nevertheless, that there are three open questions:

1. Whether the proceedings for the removal of Mr. Nichols, so far as the return discloses those proceedings, had reached such a stage as made them, at that stage, a proper subject of review by the court, conceding that they might reach such a stage as to become reviewable.

2. Whether it is consistent with the theory, scheme and purpose of existing legislation to hold that the proceedings in such a condition of them as is disclosed by the'return should be stopped or arrested in order to undergo review in'this court.

3. Whether any such record or transcript of the proceedings below, or any such judgment below, is brought before the court by the return, as enables this court to render any judgment, or to furnish to the relator any redress.

In reference to the first question it is deemed necessary only to say that the decision relative to the right of the respondent to the certiorari which was issued in his favor, determined that the proceedings had reached such a stage as made them properly the subject of review by this court. And this necessarily includes the second question, which differs slightly from the first.

The real point, however, presented by these several propositions is whether the respondent could, under the laws of this State, seek a review of the action of the Mayor adjudging his removal prior to the exercise of the right of approval as .required by the statute. This point, as already stated, has been substantially passed upon in. this court, and in the Court of Appeals, but nevertheless a few suggestions may not be out of place. The statute of 1873 (Laws of lS'TSjéíH, ch. 335, § 25), provides that the heads of all departments and all other persons whose appointment is in the statute provided for “ may be removed by the Mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the Governor, expressed in writing. The Mayor shall, in all cases, communicate to the Governor, in writing, his reasons for such removal.” ' The respondent based his application for the certiorari chiefly upon the ground that he was deprived of anc opportunity to be heard. And the Court of Appeals, on the appeal from the order granting the writ of prohibition, very distinctly determined that he had been deprived of such opportunity, declaring that the proceeding in which it was sought to remove him must be instituted upon specific charges sufficient in their nature to warrant his removal, and that such charges must, unless admitted, be proven to be true; that he might cross-examine the witnesses, produced to support the charge, call other witnesses, and in this and other steps be represented by counsel. And further, that in no other way could a person sought to be removed have a due hearing or an opportunity to be heard — a condition which must be complied with before the power of removal can be exercised. The justice presiding at the Special Term, in an elaborate opinion; has demonstrated, and there can be no question of the accuracy of his conclusions on that subject, that the respondent was not afforded an opportunity to be heard, and his trial, or the investigation as to his conduct, was not carried on in the manner authorized by law — in the mode declared, as we have seen, by the Court of Appeals, in which it ought to have been conducted. He was not allowed the right of cross-examination, and he was denied the privilege of being represented by counsel. We do not consider it necessary to add anything to a proposition so plainly determined and so'plainly just.

The learned counsel for the Mayor, who have displayed great zeal and ability in the proceedings, seem to be controlled by the proposition that, under the statute, the action of the Mayor in proceedings like this under review, is in abeyance, and, therefore, incomplete and imperfect until the Governor’s approval or disap> piroval is expressed, and that, under the statute, the record is necessarily before him, in his possession and under his control. The proposition cannot be maintained. The statute confers absolute power upon the Mayor to pronounce what may be regarded as an interlocutory judgment. It is the Mayor who may remove for cause; and it is he who shall give the opportunity to be heard ; and'it is he, -who, after he shall have determined that the removal must be made, must communicate the result to the Governor. The statute does not require that he shall §end the record or the proofs, but simply his reasons in writing for such removal. And his reasons may be a mere statement of the conclusions at which he has arrived, without stating the manner in which the proceeding was conducted, or the character of the proofs given to substantiate the causes upon which the removal is founded.

A proper estimate of the office of the writ of certiorari cannot, therefore fail to impress upon the legal mind the great importance of sustaining its application to a case like this. The -judgment of the inferior tribunal has been pronounced, but is held in abeyance, as already suggested. It is trae that it may be said that the statute works a stay of proceedings until the reasons for the judgment shall have been communicated to and approved by the Governor of the State, but the stay is only of the execution of the judgment, which remains in full force and effect nevertheless. The Governor, it must also be said, may not be advised by the reasons given, of the violations of law by which the removal was distinguished, as, for example in this case, and apjprove upon reasons expressed but developed by a departure from well established principles of law, and therefore by a violation of the rights of the pier-son proceeded against. The aprproval rests only upon the judgment pronounced, and the reasons assigned for declaring it. If the judgment be one arrived at by disregarding well settled legal principles, and is therefore null and void, it should, on every principle of justice and equity, be arrested before it reaches the ultimate tribunal'whose decree is to make it final and resolute.

Ill addition to this, it may be said, without any farther discussion of the question, that there may be doubt about the right of ■ the courts to review the action of the- executive in reference to a proceeding like this, after he shall have expressed his approval; and if it were determined ultimately that there was no such power then the person removed would be illegally, and therefore unjustly, deprived .of his office.

. No good reason has been shown; and no good reason occurs to my mind, why a certiorari should not issue in a case like this, and at a stage of the proceeding which it designed to affect. In the view that I take of this appeal, however, it is entirely unnecessary, in order to establish the right of the respondent to all the benefits of this proceeding which he has achieved, to show more than that this court and the Court of Appeals have decided that a certiorari is the proper form of procedure.

I entertain, therefore, no doubt that the judgment pronounced by the comt below is correct,, and that it should be affirmed.

Barrett, J., concurred.

Davis, P. J.,

dissenting:

For the-reasons hereinafter stated, I am unable to concur in the result reached by my brethren in this case. I think it not correct to assume that this court, on the appeal from the order granting the writ in this case, passed upon the ^question whether the proceedings for the removal of the relator had reached a stage at which they could be reviewed in this form. It was argued on that appeal, that the proceedings of the Mayor and Governor under the provisions of the charter; in removing heads of departments, were final' and conclusive, and not the subject of review by any court. This court held to the contrary; and decided that such proceedings might be reviewed by certiorari; and upon that point alone the appeal was disposed of, leaving all questions relating to the merits, and to the efficacy of the writ in the particular case, to future'consideration, and without comment. The court in a very brief opinion, said, “We are of the opinion that a writ of certiorari may properly be sued out to review the action of the Mayor in cases of this character. The allowance of .the writ rests in the sound d'iscietion of the court to which application is made, and this court will not interfere with the exercise of such discretion in allowing the writ where it does not appear that it has been palpably abused. Without considering, or in any manner passing upon the merits of the case, which we think are not properly before us for that purpose, we dispose of the case simply on the ground that a certiorari will lie in such a case as this ; and that the action of the court in granting the same was not an abuse ■ of its discretion.” I am at a loss to see how it is possible from this opinion to say, that the court did any thing more than decide that a writ of certiorari would lie and was an appropriate course of procedure in such cases. . •

Nor was the question passed upon or considered by the Court of Appeals, on the decision of the appeal from the order of this court granting the writ of prohibition. That writ was directed to and prohibited a justice of the Supreme Court, then sitting at chambers for the purpose of hearing non-enumerated business and motions, from ordering a cause belonging to the enumerated calendar of the Special Term for the trial of issues of law and fact, and there to be tried according to the forms prescribed by statute, to be heard and tried before him at chambers upon such an order to show cause as he saw fit to direct. This court was of opinion that a justice had no power to make such an order, and thereby deprive the parties of such notice, form and mode of trial as the Legislature had seen, fit to prescribe, and we thought, had secured to all parties. There was no question in that case, either upon the merits of the controversy or the sufficiency or validity of the writ of certiorari, before this court, and no such question was considered or passed upon by this court, however much talked about by counsel. On the appeal, the Court of Appeals decided that a justice at chambers had such power; and that ruling disposed of the whole question before the court. It is not doubted that that decision became the law of the case, and for a time established the law in similar cases; but it is a fit subject for gratulation that ‘the flood of evil such a rule of law was likely to set loose in this city has been effectually sto ped, so far as writs of certiorari are concerned, by an act of the Legislature. Section 2138 of the “ Act supplemental to the Code of Civil Procedure ” (passed May 6, 1880), declares that in such cases, “the cause must be heard at a General Term of the court. In the Supreme Court, it must be heard at a General Term held within the judicial department embracing the county where the writ was returnable.” This act re-establishes the practice of the common law, which was never broken in upon in this State, until by a rule of the court, it was provided that such cases might be heard at a Special Term. It is true that the Court of Appeals having disposed of the question before it, the learned judge who pronounced the opinion gave expression, to some extent, of his views of the merits of this controversy — which are, of course, entitled to the respect due to his great learning and ability; but as the merits were not before that court, it is also- due to 'him to say that he could not have intended to have decided finally questions of law or fact which had not then reached, and might never reach that high tribunal. But as to the question now under consideration, he expressly said: “Various other questions have been argued by the counsel for the respondent relating to the form of the writ of certiorari, and the effect of the order made by the Mayor, whether it is interlocutory or final / hut these need not he considered. They relate to the procedure under the writ, and must be disposed of when that writ and the- return thereto come before the court. They lime no relation to the order before us/ that, as its Icvnguage shows, is quite narrow.” It was a mistake therefore, in the court below, as it is' a mistake in the majority of this court, to hold that the question whether the order of the Mayor was “ interlocutory or final,” and could be reviewed on certiorari, had been determined, and is therefore res adjudicata in this court. I think the question is entirely an open one.

It is the well settled rale of law in this State, in such cases, that the order or judgment to be reviewed on common law certiorari must be complete and final before the writ will lie. ‘ This rule is now so well established that the Legislature has embodied it in section 2122 of the Code of Civil Procedure, by declaring that, “ Except as otherwise expressly prescribed by statute, a writ of certiorari cannot be issued: 1. “To review a determination, which does not family determine the rights of the parties with respect to the matter to be reviewed.” I accept this language as a terse and vigorous exjaression of the law, codified from the reports, which have long settled that “ the writ is powerless to remove a civil proceeding before an inferior magistrate exercising statutory jurisdiction, until after a final adjudication in the proceeding.” (5 "Wait Pr., 457; Lynde v. Noble, 20 Johns., 80; People v. Peabody, 26 Barb., 437; Devlin v. Platt, 11 Abb. Pr., 398; People v. Common Council of Utica, 65 Barb., 1; 8. C., 45 How. Pr., 289.) Especially must this be the rule where, as in this case, the court has no power to proceed, and determine the question or issue brought up by the writ. In England it has been the practice on certiorari to remove matters pending in inferior courts to a superior court, and for the latter thereupon to proceed de novo to hear and determine the same; but not in cases where by statute the powe/r to do the act complained of was vested im some officer or body.

The power to remove is given in this case to the Mayor alone with the approval of the Governor; and neither this court nor the Court of Appeals can exercise it' under any circumstances, although we may review the proceedings by which a removal was made when they have become a final and effective determination.

In the light of the rule above mentioned, let us examine the mode of removal of heads of departments provided by the city charter. The mode is a single and simple one. It is made up of two things, or acts, which though independent of each other must coexist and concur before there can be any final determination, “ which determines the rights of the parties with respect to the matter to be reviewed.” The charter (Laws of 1873, p. 491, ch. 335, § 25) provides that the heads of all departments . . . may be removed by the Mayor for cause, and after opportunity to be heard, subject however before such removal shall take effect, to the approval of the Governor expressed in writing. The Mayor shall in all cases communicate to the Governor in writing his reasons for such removal.”

To me it seems too plain for argument that the action of the Mayor cannot be final when he determines to remove, until the “ approval of the Governor is expressed in writing.” His determination is purely interlocutory until another act over which he has no control gives to it finality. By it the officer is not and cannot be disturbed in his functions, nor suspended in his operations, nor relieved from his duties, nor deprived of his salary, nor affected officially in any degree. In the strictest and most literal, as well as in the broadest sense, the proceedings to remove, where nothing appears except the action of the Mayor, are inchoate,' incomplete, . and wholly ineffective, and they may exist in that form forever, and neither impair nor legally prejudice the status or functions of the officer. It neither does nor can it appear, while that condition remains, that any determination will ever be made that will be or become final and effective. The law cannot' presume that the Governor will approve. On the contrary if the proceedings be erroneous, the legal presumption if .any, is that he will not approve. His duties are not merely perfunctory. Before approving he may investigate, re-examine and re-try to whatever extent he chooses, not for the purpose of removing by any official energy or power of his own, but to inform his conscience or judgment before he approves or rejects. It is the Mayor’s detenrdnaüon that removes; but it is his a/pproved determination. His v/napproved determinartion is legally speaking, as harmless and 'powerless as was the blank paper upon which it may have been written. Hence it appears that the Mayor’s act is but one step in a process which requires two steps, and can never be final or effective without both. It is a necessary step it is true, but without the other it accomplishes nothing, for the process remains incomplete, and is but “ the half of a scissors which will not cut.” A certiorari will not lie to review the several steps in such a process, for the court is then called upon to review something which has. no legal force to work injury to anyone. If the statute had declared that the Mayor’s determination should have “ no effect ” until filed with the Governor, the point would have been very clear, and no one would have thought of suing out a certiorari till after such a filing; but the case in principle would have been no different, because the approval is as requisite to make the Mayor’s act a final adjudication, as would be thsfili/ng in tbe case supposed. The completed process may be reviewed, because the several steps that have made it complete have resulted in a final determination which does an injury to right or property, fit to be redressed. The writ of certiorari is not a preventive process, but a remedial one; and hence it does not lie to review each of the several steps that may culminate in a wrong, but only the completed and final determination that works the wrong. The confusion seems to spring from considering the ' Governor as an appellate tribunal appointed to review a final determination of the Mayor. He is nothing of the sort; he is only a constituent element of a system, which is nothing without him, as it is nothing without the Mayor, but, with both concurring, is complete and efficient. It is the very common thing, of a statute requiring two or more public officers to do several and separate acts, to consummate a specific result. The act of neither is such a final and complete thing, that it can be reviewed and reversed except by special statutory provision, because of its legal incapacity to effect anything. For instance, to bond a town, if the statute requires the consent of two thirds of the freeholders and the approval of the county judge. There is nothing to review, by certiorari till both acts combine, for the consent is but a step, complete in itself, but of no legal effect, till the approval be obtained. Then it may be reviewed because it has become a completed process, affecting and perhaps injuring the rights of others. So also of proceedings in the various steps to lay out a highway. None of them is the subject of separate review, though it be in itself a completed part of the several things to be done to constitute a legal whole. It would be different if the determination of the Mayor had efficacy and force, ex proprio vigore, which remained operative unless, or until disapproved by the Governor. In that case it would be a final determination affecting substantial rights; but in the case before us, the statute in substance declares that the Mayor’s proceedings have no effect till the Governor expresses his consent in writing.

I do not consider the question whether the Governor is a necessary party to a writ of certiorari, after he shall have approved: that is quite unnecessary. It is clear however, that the removal does not become tbe Governor’s act by Ms approval. It is still tbe Mayor’s act and must stand or fall on the proceedings before him. It cannot be helped ont by any investigation the Governor may set on foot to inform his conscience. When the Mayor’s proceedings and determination have become final and effective by the approval of the Governor, the question whether they were without jurisdiction, or were taken in violation of law, is one quite independent of, and to no extent supported or impaired by the Governor’s actions. • In this ease the return shows notMrig beyond the unapproved determination of the Mayor, and the writ should therefore be dismissed as prematurely issued.

I do not feel constrained to wholly yield my judgment on the merits to what I conceive to have been the obiter expressions of the learned judge of the Court of Appeals. In my opirnon, the charter provides a simple and effective mode for the removal of heads of departments by the Mayor, who is the representative of the whole people of the city. It was not, I think, intended- to provide “ a judicial proceeding,” but a summary administrative one, by wliich the Mayor, after giving to the officer an opportunity to be heard,” could remove “for cause,” with all the promptitude any exigency might require, provided his action received the approval of the Governor. The requirement of such approval was deemed a sufficient safeguard against inconsiderate, unjust or partisan action on the part of the Mayor. I have no doubt it was the intention of the Legislature that the Mayor might act upon his own knowledge, or observation of the misconduct or inefficiency of an officer, whenever' they became in Ms judgment sufficient cause, and the officer should fail on opportunity given, to show a satisfactory excuse or explanation. This construction would secure to the city an efficient government, under which the heads of departments could be held to a responsibility that would make them the servants and not the masters, of the people. The contrary construction has worked infinite mischief under the false idea, that the title of an officer to his place is a matter superior in importance to the right of the people to have and enforce the performance of the duties of the office.

It is not necessary to discuss this part of the case any further-; but I cannot forbear to say that, in my judgment, the return shows that the Mayor, in the removal of the relator (even if it be conceded that he acted under mistaken advice as to the law), did an act fully deserved, and which entitles him to the approbation of all good citizens. The return shows (what every citizen must well remember as overt facts) that through the inefficiency of the heads of the Police Department, the public streets had, to a large extent, become intolerable nuisances; that the Board of Commissioners were at deadlock, by a chronic and disgraceful quarrel among themselves, to such an extent that the offenses of members of the force could not be, and were not tried; that unfit men could not be removed, or fit men appointed; that measures demanded by the public interest could not be adopted ; that the discipline of the police force was relaxed and its morale debauched; that all the streets were neglected; and to such an extent had these things gone, that one member of the board had introduced resolutions in that body reciting some of these facts, and requesting the Mayor “ to investigate the department without delay,” and had personally appealed to him to make such investigation.

The charter simply required that removals should be for cause, and “ after opportunity to be bear’d.” It necessarily makes the Mayor the actor, as accuser, witness, and trior, and imposes upon him the duty of determining. It provides no process to bring in the officer; none to summon witnesses or compel testimony; no power to administer oaths, to punish contempts, to preserve order. In short, it provides nothing but to present the “ cause ” or causes to the officer, and hear his denial or explanation, or excuse. To hold that these simple provisions create a court of which the Mayor is a judge, bound to sit as a court, to produce witnesses to sustain his alleged “ causes ; ” and to be sworn and cross-examined himself; to hear the testimony of whatever interminable list of witnesses, the officer may choose to produce; and to listen to the objections, quibbles and arguments of lawyers, is to pervert the simple machinery of the statute into the cumbrous forms of a judicial tribunal, destitute of rules and powers, yet hampered by impediments and technicalities. Such a construction virtually prevents all removals, and reduces the scheme of the charter to an incongruous absurdity. The Constitution in so far as it restrains or regulates the trial of actions and indictments in the organized courts of justice, has nothing to do with such a case. A person who takes office under the charter takes it subject to the“provisions of the charter. It is his contract with the city, not only that he will faithfully perform the duties of the office, but that he will hold himself amenable to removal by the Mayor, under the provisions of the charter-, if he fails to do so. ' In iny opinion the Mayor acted iu removing the relator within the scope of his powers ; but if I err in that view I shall have an abiding conviction that whatever. flaws lawyers and courts may find in his action the common sense of justice and morality -will approve it. I think the judgment of the Special Term should be reversed and the writ quashed.

.Judgment affirmed.


author: Daniels, J.: Barrett, J.: ■ Davis, P. J.,

text:
    In the Matter of the Petition of THOMAS H. WALTER and others to Vacate an Assessment, etc.

      Repeal by implication — section 2 of chapter 52 of 1852 was repealed by chapter 697 of 1867. .
    Chapter 697 of 1867, — conferring upon the Commissioners of Central Park the exclusive power to lay out and establish streets, avenues, roads, etc., and to alter and amend the grades of any road, street or avenue retained, and to establish new grades for all other streets, avenues or roads, within a certain portion of the city therein specified, —repealed, by necessary implication, as to the said portion of the city, the provision of section 2 of chapter 52 of 1852, requiring the consent in writing of two-thirds of the owners of the laud, in lineal feet, fronting on each side of any street or avenue, to be obtained, before any change in the established grade thereof could be made. (Davis, P. J., dissenting.)
    Appear from an order made at a Special Term denying an application to vacate an assessment.
    The assessment was laid for the expenses of regulating, grading, curbing, flagging and guttering Fifth avenue, between Ninetieth and One-Hundred-and-Twentieth streets. The application of the petitioners to have it vacated, so far as it affected their property fronting on the avenue, was denied.

      Cf. 8. Willces, for the petitioners and appellants.

      JS. Hewy Lacombe, for the Mayor, etc.
   Daniels, J.:

The objection taken to the regularity of the proceeding, resulting in the improvement and the assessment complained of, is that the work was directed and performed without first obtaining the consent in writing of two-thirds of the owners of the land in lineal feet fronting on each side of the avenue, as that had been required by section 2 of chapter 52 of Laws of 1852. And if that act had remained in force, there can be no doubt but that the objection would have been sound. For the improvement appears to have been made without that assent. But by later legislation the system, previously adopted for the improvement of this avenue and other neighboring streets, was changed. By chapter 697 of the Laws of 1867, the exclusive power to lay out and establish streets, avenues, roads, etc., and to alter and amend the grades of any road, street or avenue retained, and establish new grades for all other streets, avenues or roads, within that part of the city bounded northerly by the southerly side of One-Hundred-and-Fifty-fifth street, easterly by the westerly side of the Eighth avenue, southerly by the southerly side of Fifty-ninth street, and westerly by the Hudson river, and also within a space of three hundred and fifty feet in width surrounding the Central Park, was reposed in the Commissioners of that park. (2 Laws of 1867, p. 1748, § 1.) And while they did not have the power to do it themselves, the law provided that, upon the requisition of these commissioners, the departments authorized by law to do it, should proceed forthwith to make such improvements, as regulating, grading, paving, sewering, curbing and guttering, within that district, as properly came under then-respective powers. (Id., p. 1753, § 6.) All that the law required, as the authority for the work, was this requisition of the commissioners. Where that was made, it was the unqualified duty of the proper departments forthwith to make the improvement. And this, with the subsequent change made, was ample authority for what was done upon this avenue up to and including One-Hundred- and-Tenth street. For it was admitted as a fact that this avenue was within three hundred feet of the Central Park. By chapter 626 of Laws of 1870, authority of a similar nature over the northerly portion of the avenue, beyond.One-Iiundred-and-Tenth street, was conferred upon the Department of Public Parks. And as to. grading, regulating, paving, sewering and otherwise improving and maintaining it, the avenue was placed under the management of that department. (2 Laws of 1870, p. 1456, §§ 4, 5.) And by section 7 of chapter 872 of the Laws of 1872, all the powers derived from both these acts were transferred to the Department of Public Works, which seems to have done the work and made the improvements, to avoid the expenses of which this proceeding has been taken. As to this work, the Legislature prescribed a system different from that created by chapter 52 of the Laws of 1852. It was within the power of that body to make the change. And it did so by removing the district, in which the Fifth avenue was situated, from the restriction imposed by the previously existing law. The systems were wholly different; and, by the terms defining the authority under which the improvement should be made, the restraint, previously subjecting it to the written consent of the owners of the property, was removed. The former provision was repugnant to those afterwards adopted, and, to that extent, it was superseded. The order made appears therefore to have been right, and it should be affirmed.

Barrett, J.:

-1 am satisfied that it was the legislative intent, in inaugurating the new system provided for in chapter 697 of Laws of 1867, to remove the territory embraced within the boundaries of the new jurisdiction from the general restriction of section 2 of chapter 52 of Laws of 1852. Repeal by implication is of course not favored. But when the nature and extent of the contemplated improvements are-considered, and the fact-that such improvements might have been frustrated or greatly impeded by requiring, at each step involving a change of grade, the consent of two-thirds of the adjoining landowners, there can be little doubt that the latter requirement is inconsistent with the spirit of the act, the effective execution of its purpose, and the wide and exclusive power thereby conferred. It was not a mere transfer of the old power to new officials, leaving the restriction untouched, but a carving out of new and independent functions to be exercised within a limited area for a special and useful public purpose.

I therefore concur with Mr. Justice Daniels that the order should be affirmed.

■ Davis, P. J.,

dissenting:

I do not doubt that the new system gave power to make the improvements to the Park Commissioners, and that the exercise of that power would be lawful; but the question is at whose expense it could be done. The statute protected the land-owners from further assessment so far as to require the consent of two-thirds before the expense could be charged upon them. That protection was never repealed by express enactment; and it was not repealed by necessary implication, because the new powers could all be exercised by the commissioners without the consent of two-thirds of the owners if done at the expense of the general taxpayers. If the work had been done in that way, no owner could have complained because the grade was, changed; but when it was assumed to make that change at the expense of the owners the statute requiring the assent protected them from bearing the whole expense of the work. I do not see why a statute authorizing. work of this kind to be done by a public board, must of necessity be construed as repealing the provisions that protected private owners from bearing new burdens caused by the change of grades already lawfully established at their private expense. To give it 'that construction it must be held that the work could not be done at all except by assessing its expense upon private owners. I think that is putting a construction upon the statute not necessarily demanded. If such a change was necessary for public benefit or convenience in carrying out the park system, it ought on general principles, to be paid for by the public; and I conceive it was not the intention of the legislature to compel private owners to bear those expenses without their free consent to be given in • the mode required by existing laws. I therefore.must dissent from the conclusion of my brethren.

Order affirmed.


author: Ingalls, J.: Barrett, J.: Davis, P. J. :

text:
    PETER J. VANDERBILT, Respondent, v. JOHN SCHREYER, Appellant, Impleaded, etc.

      Guaranty — distinction between one of collection and one of payment — when a cause of action arises on one for collection — an admission in a pleading cannot be severed from an accompanying affirmative allegation.

    This action was brought to foreclose a mortgage given by one Dunseith to the defendant, Schreyer, and by him assigned to the plaintiff. The complaint alleged that the defendant, Schreyer, by his assignment, “guaranteed the payment of the principal sum of said bond and mortgage, together with the interest thereon from May 5, 1874,” and prayed for a judgment against him for any deficiency that might arise on-the sale. The clause in the assignment was as follows: “I hereby guarantee the payment of said bond and mortgage for five thousand dollars and interest, from May 5, 1874, by due course of foreclosure and sale.”
    Held, that the guaranty was one of collection and not of payment.
    That no cause of action arose thereon against Schreyer until the mortgaged premises had been sold and the amount of the deficiency arising on such sale determined.
    That the complaint should be dismissed as to Schreyer.
    Where an admission in a pleading is coupled with an affirmative allegation, the adverse party cannot rely upon the admission unless he accept it as modified by the accompanying allegation.
    Appeal by tbe defendant Schreyer, -from a judgment of deficiency entered against him, as a guarantor of the bond, accompanying the mortgage to foreclose which this action was brought.
    The defendant, by his answer, admitted that he assigned and guaranteed the mortgage in the following terms: “ He admits the assignment thereof by him to the plaintiff, and he admits that he guaranteed the payment thereof, but alleges that said guaranty was inoperative, and null and void, because the same was obtained from him under the following circumstances.” The answer then sets forth facts tending to show that the guaranty was obtained by duress and coercion, and that no consideration was received by the defendant therefor.

      John L. Lindsay, for tlie appellant.
    Until after foreclosure and sale no action would lie against Scbreyer, and he was improperly made a party to this action. Until the sale no cause of action existed, the event against which his guaranty provided not having arrived. (Moakl/y v. Riggs, .19 Johns., 69; Sawyer v. Haskell, 18 How. Pr., 282; Ha/rt v. Hudson, 6 Duer, 294; 20 Johns., 365 ; Taylor v. Bullew, 6 Cow., 624 ; Thomas v. Woods, 4 Id., 113 ; Qrwm/pston v. McNair, 1 Wend., 451; White v. Case, 13 Id., 543; Owrtis v. Smadman, 14 Id., 231; Eddy v. Stanton, 21 Id., 255 ; Lovela/nd v. Shepherd, 2 Hill, 139 ; Afori v. Homer, 5 Barb., 501; 6 Id., 541.)

      T. M. Tyng, -for tbe respondent.
   Ingalls, J.:

This action was instituted' to foreclose a mortgage executed by James Hnnseith and Margaret A., his wife, to John-Schreyer, to secure the payment of $5,000 and interest. Schreyer assigned the said mortgage, with the boud which accompanied the same, to the plaintiff by an instrument in writing, of which the following is a copy, viz.:

“ Know all the men by these presents, that I, John Schreyer, of the city of New York, of the first part, in consideration of the sum of $5,000, lawful money of the United States, to me in hand paid by Peter J. Yanderbilt, of same place, of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said party of tbe second part, a certain indenture of mortgage, bearing date tbe 5th day of September, in the year one thousand eight hundred and seventy-three, made by one James Dunseith and Margaret A., bis wife, to me, John Schreyer, to secure the payment of five thousand dollars, and interest, and recorded in the office of the register of the city and county of New York, on September 5, 1813, in fiber 1145 of mortgages, page 89. Together with the bond or obligation therein described, and the money due, and to grow dne thereon, with the interest, to have and to hold the same unto the said party of the second part, his executors, administrators and assigns for , , subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby make, constitute and appoint the said party of the second part my true and lawful attorney, irrevocable in my name or otherwise, but at his proper costs and charges, to have, use and take all lawful ways and means for the recovery of the said money and interest; and in case of payment, to discharge the same as fully as I might or could do if these presents were not made. And I hereby guarantee the payment of said bond and mortgage for five thousand dollars, and interest from May 5, 18J4, iy due course of foreclosu/re a/nd sale.

“ In witness whereof, I have hereunto set my hand and seal, the fifth day of May, in the year one thousand eight hundred and seventy-four. * JOHN SCHREYER. • [l. s.]

“ Sealed and delivered in the presence of

“Geo. W. MoAdam.”

The defendant Schreyer was made a party in the action for the purpose, doubtless, of charging him with the payment of any deficiency which might arise upon the sale of the mortgaged premises, and in the complaint the assignment and guaranty is alleged as follows, viz.: “ And the plaintiff further shows that the said John Schreyer, by assignment, dated the fifth day of May, 1814, duly executed and delivered by him to the plaintiff, did sell, assign, and transfer to this plaintiff the bond and mortgage hereinbefore described, and plaintiff has ever since been, and now is, the true and lawful owner and holder thereof. That said assignment was recorded in the office of the register aforesaid, on the 13th day of May, 1814, in liber 1163 of mortgages, page 611. And plaintiff further shows that the said John- Schreyer, in and by said assignment of mortgage, g%iara/nteed the payment of the principal sum of sañd iond and mortgage above described, together with the interest thereon, from May 5th, 1814.” It is observable that the following words “by due course of foreclosure and sale” were omitted in stating, in the complaint, the terms of such guaranty, and consequently upon the face of the pleading, Schreyer appeared to be a proper party to the action; and no misjoinder of parties or causes of action appeared by the complaint. The material question presented by this appeal seems to be, whether the guaranty is to be construed as one of payment or collection ? If the former, a right of action became complete against Schreyer by a neglect or refusal to pay the money on the part of the mortgagors, and consequently he became a proper party to the action, and therein chargeable with any deficiency. If the latter, no right of action would accrue against him until by a foreclosure and sale it should be ascertained that the mortgaged premises were insufficient to satisfy the debt. We feel constrained to regard the provision referred to, a guaranty of collection, and in legal effect an undertaking to pay such an amount of the mortgage debt as should remain unsatisfied by a foreclosure and sale of the mortgaged premises. Presumptively the premises would prove sufficient to cancel the debt, and probably Schreyer so expected. He evidently intended not to become liable to a prosecution, until, by due course of law, in the form of a foreclosure of the mortgage, his liability, or at least the extent of it, should be ascertained. The foreclosure and sale was made by the agreement of the parties a condition precedent to any right of action against Schreyer. And such, in our judgment, must be the legal effect. (Mosher v. Hotchkiss, 3 Keyes, 161 ; Craig v. Parkis, 40 N. Y., 181; White v. Cease, 13 Wend., 543 ; Burt v. Horner, 5 Barb., 501; Moakley v. Riggs, 19 Johns., 69.) It furnishes no answer, that a sale had taken place of the mortgaged premises before .the trial of the issue raised by the answer interposed by Schreyer, because the plaintiff was bound to establish not only a cause of action, but an immediate right of action against Schreyer at the time the action was commenced. The question which has been considered seems to have been fairly presented and insisted upon at the trial, as the defendant Schreyer made the following motion at the close of the plaintiff’s case.(

“ Plaintiff rests.

“ Defendant’s counsel moved to dismiss the complaint on the ground that the defendant Schreyer is an improper party defendant to the action; under the guaranty the defendant Schreyer is not a proper party to the suit: the action could not have been brought upon that covenant until after course of foreclosure and sale, and until after the amount of the deficiency of the mortgage should have been ascertained by a judicial sale.

Motion denied. Defendant excepted.”

The judgment should be reversed with costs so far as it charges the defendant Schreyer with deficiency — but without prejudice to any remedy which the plaintiff may have to enforce his claim against Schreyer.

Barrett, J.:

I concur in the construction given to the guaranty by my brother Ingalls. The only doubt which I entertained was as to the effect of the pleadings. The complaint was upon a simple guaranty of payment, omitting the words, By due course of foreclosure and sale.” The words of the answer are, He admits that he guaranteed the payment thereof.” However, as the plaintiff did not rely upon this admission, but introduced the instrument upon the trial, and as the defendant then took the point in question without objection that he was concluded by the pleadings, I think the merits may now, as well as then, be properly considered. Were it necessary, the pleadings might, under such circumstances, be conformed to the proofs, even upon the appeal. That would certainly be in the interest of justice. It seems, too, that the admission was coupled with an affirmative allegation. Now the rule is well settled- that the paragraph in which the admission and the allegation are blended cannot be severed. The plaintiff could not, therefore, have concluded the defendant, by this admission, without accepting the immediate surroundings, which, as these surroundings embrace the entire affirmative defense, would have been equally fatal to him. I agree, therefore, to the reversal of the judgment.

Davis, P. J. :

My impression on the argument was that the flexibility of the power of the court in suits in equity might permit a contingent judgment that would enforce the liability of the guarantor in -case of a deficiency by making it dependent upon tbe failure to collect such deficiency on execution duly issued on the judgment against his principal. But, on reflection, I am of opinion that the guarantor is entitled to his day in court on every question as to his liability that might arise, even after foreclosure and sale, by reason of neglect or lack of dme MUgenee, extension of time, or for any other cause. I think his obligation must be regarded as a striothj legal one, to be enforced with due regard to the doctrine st/rietissimi juris, and that, before sucb liability can be enforced, either at law or equity, it must have become fixed by a performance of tbe condition, expressed or implied, on which it depends. I therefore concur in the result reached by my brethren.

Judgment reversed.