text:
    HENRY A. GADSDEN, Respondent, v. EDWARD H. WOODWARD, Appellant, Impleaded with Others (and Three Other Cases).

      Practice — action against a trustee of a corporation for a failure to file areport — the defendant cannot sene an unverified answer — Code of Civil Procedure, secs. 523 and 837 — such an action being ex delicto,' the clerk cannot enter judgment on default, under section 1212 of said Code.

    In this action, brought by a creditor of a manufacturing corporation against certain of the trustees thereof, to enforce a liability alleged to have been incurred by them by reason of a failure to file the annual report, as required by law, the summons and a complaint, duly verified, were served upon the defendant Woodward, Woodward served an unverified answer upon the plaintiff and claimed to be entitled so to do, under sections 523 and 837 of the Code of Civil Procedure, upon the ground that the action was brought to-recover a penalty.

      Meld, that the claim could not be maintained.

      That, although the action was in its nature ex delicto and in its character penal, yet the penalty to be enforced thereby was not a penalty in the sense in which that word is used in the said section 887.
    In other words, the “penalty” as to which the witness may, by that section, be excused from testifying, must necessarily involve a forfeiture; and this must be a forfeiture as contradistinguished from the liability to pay a debt. It must be characterized by the loss of some right, privilege, estate, honor, office or effects, by an offense, crime, breach of condition, or other act.

      ■Glapp&r v. Fitzpatrick (3 How., 314) distinguished; Hug7ienr. Woodward (August Ho., 1885, How. Pr., 127) overruled.
    After an order, denying the defendant’s motion to compel the plaintiff to receive his unverified answer, had been made, the plaintiff entered a judgment, as on a default for want of an answer, in an action upon contract and upon application to the clerk only.

      Held, that, as the action was not ex contractu, and as the complaint did not set forth one or more of the causes of action embraced within section 420 of the Code of Civil Procedure, the clerk had no power to enter the judgment, and the same should be set aside.
    Appeals from orders denying motions to compel plaintiff to receive an unverified answer, and from orders denying motions to vacate judgments.

      James B. Dill, for the appellant.

      De B. Wibnot, for the respondents.
   Brady, J.:

This action was brought to enforce a liability incurred, as alleged by the defendant and his co-trustees, in consequence of their failure to file an annual report, as trustees of the Pyrolusite Manganese Company. The summons was personally served on the appellant defendant within the State and the complaint was duly verified. The defendants answered separately, but the defendant Woodward ■served an unverified answer, which was returned the day it was served with a notice electing to treat it as a nullity, pursuant to section 528 of the Code of Civil Procedure. On the 13th of May, 1885, the appellant made a motion to compel the plaintiff to receive the unverified answer, which motion was denied and an order •entered. Judgment was subsequently entered as on a default for want of an answer in an action upon contract, and, therefore, upon application to the clerk only. Thereafter the defendant moved to set aside the judgment as irregularly entered, which motion was denied. This appeal involves the propriety of both orders denying the motions mentioned. The appellant insists, this being an action to recover a penalty, that he is not bound by the provisions of the Code to answer, under oath, the allegations in the complaint. And this view seems to be predicated of a number of decisions declaring, as they certainly do, the action to be in its nature ex delicto, and in its character penal. It was so pronounced in the case of the Merchants’ Bank v. Bliss (35 N. Y. 412), and since that decision, as observed by Chief Judge Huger in Stokes v. Stickney (96 N. Y., 326), the subject of actions under the sections of the statute of 1848, which create the liabilities of trustees upon facts alleged in this action, has frequently been under the consideration of this court, with the uniform conclusion that the actions therein provided for are penal in character, and are not in any respect based upon the theory of affording compensation to the injured party for damages sustained by reason of the omission complained of.” The logical effect of these decisions, which he states, is to classify such actions under those usually designated as actions ex delicto, and which, at common law, were extinguished by the death of the tort feasor.

The Code, however, by section 523, provides that where a pleading is verified, each subsequent pleading, except a demurrer, must also be verified. And further, that the verification may be omitted in the action where the party would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading, and section 837 declares that a witness shall not be excused from answering a relevant question on the ground only that the answer may tend to establish the fact that he owes a debt or is otherwise subject to a civil action; but provides that this does not require a witness to give an answer which would tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty of forfeiture. Nor does it vary any other rule respecting the examination of a witness. The theory of the appellant, therefore, is that this is an action ex deUcto for a penalty, and that as he could not be required to appear as a witness and answer any question which would expose him to a judgment for a penalty, he is not bound to verify his answer.

It will doubtless have been observed that section 837, to which reference has been made, expressly declares that the witness shall not be excused from answering any relevant question on tbe ground only that the answer may tend to establish the fact that he owes a debt or is otherwise subject to a civil suit. It is true that the statute of 1848, under which this action was brought, subjects a trustee who fails to comply with some of the provisions of that statute to a penalty, which in this particular instance is the payment to the creditor of a debt due from the corporation. In other words, it extends the liability of the corporation to the trustee and imposes upon him the obligation to pay the indebtedness. It is not, however, a penalty in the sense of a forfeiture as in the case of Henry v. Salina Bank (1 N. Y., 88), and upon which the appellant herein relies. There it appears that if Chapman, the witness, had committed the act complained of, he forfeited not only twice the amount of the loan, which he made on behalf of the bank with which he was connected, but likewise forfeited the debt itself. Hence the word penalty or forfeiture used in section 837 would seem to be used in the same sense; in other words, the penalty as to which the witness may be excused from testifying necessarily must involve a forfeiture, as illustrated by the case to which reference has just been made. And this must be a forfeiture as contradistinguished from the liability to pay a debt. It must be characterized by the loss of some right, privilege, estate, honor, office or effects by an offense, crime, breach of condition or other act.

It is true that the obligation imposed to pay the debt is a quasi forfeiture of a man’s property, but that the legislature intended to make a distinction between it and such a penalty as mentioned is very clear, for the reason which has already appeared, namely, an express declaration that the witness should not be excused from answering where the answer would tend only to establish that he owed a debt or was otherwise subject to a civil suit. And this view is confirmed byjthe definition, first, of a criminal action; and, secondly, of a civil action. A criminal action is one prosecuted by the people of the State against a person charged with a public offense for the punishment thereof. Every other action is a civil action. (See Bliss’ Annotated Code, 1877, p. 1008).

We have been referred on this subject to the case of Clapper v. Fitzpatrick (3 How., 314), decided in 1848. That, however, was an action of assault and battery, and the section under which it was decided was quite different from that now under consideration, as will be seen by an examination of that case. We are also referred to the case of Hughen v. Woodward (August No., 1885, How. Pr., 127), in which the General Term of the City Court held that in an action such as this a defendant was privileged from answering any question concerning the facts alleged in the complaint, and could not be compelled to answer, upon an examination before trial, any question which would support the claim of the defendants, either against him or his codefendants. The learned justice who wrote the opinion in that case regarded the action, and properly, as penal in its character, and held that under the provisions of section 837, to which reference has been made herein, and the case of Henry v. Salina Bank (supra), a party was not required to be a witness. We cannot follow that case, however, because we think that the distinction between actions purely penal, involving forfeiture, and actions in the nature of a forfeit which would merely impose the payment of a debt, was not considered. For these reasons it is thought that the motion to compel the plaintiff to receive an unverified answer was properly denied, and that the order appealed from should, therefore, be sustained.

A different result, however, has been arrived at with regard to the motion to set aside the judgment upon the ground that it was irregularly obtained. It appears that an affidavit of merits had been served, and, as we have already learned, an answer also; but the latter was returned because it was not verified. The action is clearly not ex contractu, as appears from the cases already cited, and to which may be added Wiles v. Suydam (64 N. Y., 173); Easterly v. Barber (65 id., 262). And not being an action ex contracm, the clerk was not authorized, under section 1212 of the Code of Civil Procedure, to enter the judgment, the complaint not setting forth one or more causes of action embraced within, and contemplated by, section 420 of the Code.

It is contended, however, by the respondent that, assuming the judgment to have been irregularly entered, the defendant is not prejudiced, and, therefore, it should not be set aside, inasmuch as the appellant cannot set up any meritorious defense. The response to this is that the answer is not before us and that an affidavit of incite is upon file, whichis regarded as destructive'of the contention mentioned.

For these reasons, it is thought that the order appealed from in reference to the unverified answer should be affirmed, and the order in regard to the vacation of the judgment should be reversed, without costs to either party of this appeal. These conclusions each apply to three other cases presented at the same time this appeal was heard, and involving the question discussed and disposed of.

Ordered accordingly.

Davis, P. J., and Daniels, J., concurred.

Orders denying motions to compel plaintiff to receive unverified answers affirmed, and orders denying motions to vacate judgments reversed, without costs oE appeal to either party.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    In the Matter of the Application of the SUBURBAN RAPID TRANSIT COMPANY, to Acquire Title to Real Estate, etc.

      Taking of land for railroad purposes under chapter 606 of 1875— contents of petition — powei’ of [the court to amend it — what objections to the character of the midence received cannot be first raised on appeal — duty of the commissioners as to determining the route and as to fixing the time for the completion of the railway.

    A petition presented to the court, under section 18 of chapter 606 of 1875, for the appointment of commissioners to ascertain andiappraise the value of certain property required for the construction of a railway, stated that the petitioner •“ has not been able to acquire title to said land, and that the reason of such inability is that the owner thereof refuses to sell the same for any reasonable ■compensation, and that your petitioner has not been able to agree with the owner or owners of said real estate, or of any interest therein, for the sale of the same to your petitioner.”

      Held, that this was a sufficient compliance with the direction contained in the act, requiring the petition to state “that the company has not been able to acquire title thereto, and the reason of such inability.”
    Upon the hearing affidavits were produced, showing that unsuccessful negotiation for the purchase of the property had been had.

      Held, that the court had power, under section 23 of the said act, to receive the affidavits and to amend the defect, if any existed, in the petition.
    It was also objected that the case should have been heard upon oral evidence, and not upon affidavits.

      Held, that the objection was waived by not being taken at the hearing.

      A portion of what had been designated as the central route of the petitioner’s railway extended from the intersection of Third avenue and One Hundred and Twenty-ninth street, in the city of New York, where it was to form a connection with the New York Elevated railroad, along One Hundred and Twenty-ninth street to Second avenue. It was objected in the answer that the consent of the property owners and of the local authorities, required by the fourth section of the act, had not been obtained.

      Held, that the consent was not required to be obtained before, but only after the laying out and determining of the route.
    That, in fixing and determining the routes of the railroads, the commissioners-were not required to give precise directions as to the location of the line upon the ground, but that it was sufficient if the general direction was given, together with its deflections and curves, from which the line of the railroads, and what property might be acquired and appropriated for its purposes, could be readily ascertained. ,
    Section 6 of the act required the commissioners to fix and determine the time within which the railway should be constructed and ready for operation. The commissioners determined that not less than five miles of the railway should be constructed and ready for operation before September 1, 1885.

      Held, that it could not be made to appear in these proceedings instituted in May, 1885, and concluded in July, 1885, that the company had then failed, or would hereafter fail to construct and complete five miles of the railway on or before September 1, 1885.
    That the attempt of the commissioners to enlarge the time fixed for the completion of the railway upon the happening of events other than those specified in section 38 of the said act, although void and of no effect, did not impair or change, in any respect, the effect of their action in fixing and determining the time within which the work must be completed.
    Appeal by Patrick Nolan and others from an order made on the 8th of July, 1885, appointing commissioners to ascertain and appraise the value of certain property required for the construction of the petitioner’s railway.

      John 0. Shaw, for the owners, appellants.

      Samuel M Lyon and Thomas L. Ogden, for the petitioner* respondent.
   Daniels, J.:

The petition was presented to the court under the authority of section 18, chapter 606 of the Laws of 1875, and it contained a statement of the several matters required by that section to be inserted in it. It was, however, objected upon the hearing, and the same objection has been repeated in support of the appeal, that the petition was radically defective in failing to show that the company had not been able to acquire title to the land, and the reason of such inability. The petition did contain the statement that the petitioner “ has not been able to acquire title to said land, and that the reason of such inability is that the owner thereof refuses to sell the same for any reasonable compensation, and that your petitioner has not been able to agree with the owner or owners of such real estate or of any interest therein for the sale of the same to your petitioner.”

And that, generally speaking, complied with what was required for this purpose by this section of the act. For all that was directed to be stated was “ that the company has not been able to acquire title thereto and the reason of such inability.” This statement contained in the petition was not denied by the answer interposed to it. It accordingly stood admitted upon the record, and even though it may have been defective in not stating more at large what had transpired between the petitioner and the owner of the property, it was still sufficient to give the court jurisdiction over the proceeding. The case of the New York Cable Railway Company (36 Hun, 355) in no way conflicts with this conclusion, for that arose under a different provision of the statute which the affidavits referred to failed to show had been observed in every essential requirement.

But, upon the hearing which took place before the court, affidavits were produced on both sides, setting forth in detail what it was asserted had taken place between the company and the owner of the land, as well as his agent, to obtain the title thereto by purchase. And these affidavits were sufficient in detail to show that negotiations had ineffectually taken place between the company and the owner for the purchase of this property. If the petition should be held to be defective in this respect, the affidavits produced supplied the defect. And the court was empowered to allow it to be supplied or amended by section 23 of the act, which declares that “ the court shall also have power at any time to amend any defect or informality in any of the special proceedings authorized by this act, as may be necessary.” That invested the court with sufficient authority to receive the additional affidavits presented by the petitioner for the purpose of amending, elaborating and extending this statement contained in the petition. And the only objection which was taken to the reading of the affidavits for this or any other purpose upon the hearing, was that they were not served with the petition. That objection, as this power of amendment existed, was not well founded, and the court was right, therefore, in overruling it.

It has also been objected, in support of the appeal, that the case should not have been heard by the court upon affidavits, but that oral evidence should have been required for that purpose. And this objection would undoubtedly have been a good one if it had been taken at the hearing. (Matter of N. Y., Lack, and W. Railway Co., 26 Hun, 194.) But it was not, and for that reason it must be held to have been waived by the parties, as it appears in fact to have 'been, by the production of affidavits in behalf of the positions taken by each of them.

The answer filed to the petition contained certain denials and •allegations upon which the hearing before the court proceeded. It was denied that the petitioner had become a corporation under the .act of 1875. Also, that the certificates required to be made and filed had been made or filed,1 as the law directed that to be done, •and that the capital stock had been subscribed by more than twenty-five persons. But these denials were overcome by the uncontradicted evidence received at the hearing; for it was proved that the stock had been subscribed for by twenty-nine different per.sons, and that the requisite percentage of the subscriptions had been paid in cash. It was also in like manner proved that the certificates ■mentioned in the ninth section of the act had been made and filed. It is true that the one certifying in duplicate to the articles of association and the proceedings was made by four, instead of the five •constituting the board of the mayor’s commissioners. But that was allowed to be done by the act itself. Bor, by section 39, “a majority of the said commissioners shall be deemed and considered •sufficient for the transaction of any business, or for the exercise of any of the duties, powers or functions hereby conferred or enjoined upon them.”

A portion of what has been designated as the central route of the petitioner’s railways, extends from the intersection of Third avenue and One Hundred and Twenty-ninth street, in the city of New York, where it was to form a connection with the New York Elevated railroad, along One Hundred and Twenty-ninth street to Second avenue. And it was averred in the answer, as an objection to these proceedings, “that before the said commissioners could so lay out and determine the route and construction of the-said railroad, the said commissioners, or any person whomsoever,, wholly failed to obtain the consent of the owners of one-half in-value of the property bounded on, and the consent also of the local authorities having control of One Hundred and Twenty-ninth street, in the city of New York, upon which it is proposed to construct the railway or railways of the petitioner.” But that consent, was not required by any provision of the act to be obtained before-the commissioners could lay out and determine the route of the railways. On the contrary, the precedent act provided for by the law was the laying out, or locating, the route or routes of the railway, and it was after that had been done that the consents mentioned in section 4 of the act were required to be obtained. t

It was also objected by the answer that the routes themselves, of the railways, had not been fixed or determined, as that was required by the statute. But the general courses upon which the railways, were to be constructed were laid out and directed by the commissioners. Their directions were not precise as to the line to be-located upon the ground. But the general direction was given, together with its deflections and curves, from which it could be readily ascertained where the line of the railways should be laid, and to what extent property might be appropriated and acquired by it for the construction and operation of such railways. And no practical difficulty could stand in the way of following the: lines, indicated by the commissioners, as the lines upon which» the railways were to be constructed and operated. These railways-are to consist of four distinct routes, but so connected as to form parts of one general plan. The land, the title to which the petitioner desires to obtain, is upon the line of what is called the east side-route. And that route has been so described and stated in the proceedings of the mayor’s commissioners, as to leave little or no difficulty in the way of laying it out accurately and practically upon the ground. They might, it is true, have been more precise and explicit, in the details required by the act, to be observed for the erection of “ supports, turn-outs, switches, sidings, connections, landing-places, stations, buildings, platforms,” etc. But the failure to do that, as long as the statute has been practically complied with in. designating and describing the route upon which the railway may be constructed, will not render this part of their proceedings ineffectual. For the company may well follow the route and lay its railway tracks and operate its road upon it in compliance with the directions which have been given, even if its stations were not located, or its connections, etc., have not been indicated. So far as the route was included, the directions certainly have been sufficiently complete, and it is to carry them into effect that the title to the land in dispute has been found to be necessary by the company. And if beyond that any improper authority has been delegated to the company that will not nullify the proceedings, so far as they were legally taken for laying out, constructing and operating the road, but the delegation of the unauthorized authority will itself be unlawful and void.

The commissioners did prescribe and determine the time within which the railways should be constructed. That was declared in clear and express language, viz.: “Not less than five miles of the railway or railways upon the routes herein authorized shall be constructed and ready for operation before the first day of September, 1885, and within five years thereafter the railway or railways upon all the routes herein authorized shall be constructed and ready for operation.” And as this proceeding was instituted in May, 1885, and concluded on the eight of July of the same year, it could not be made to appear that the company had then, or would afterwards fail in the construction and completion of five miles of its railway on or before the 1st of September, 1885.

The stock of the company was divided into 6,000 shares of $100 each, and the verified report of the inspectors of the election showed that 5,800 shares voted.in favor of the election of the nine persons declared to be elected its directors. It might be inferred from this large preponderance of shares that more than the statutory number of persons voted for the election of the directors. But that was not left to inference upon the hearing. For it was stated in the affidavit of the president of the company that the stock had been subscribed for by twenty-nine different persons, and that the directors had been chosen by a majority in number and amount of the subscribers.

After the commissioners appointed by the mayor had determined upon the time within which not less than five miles of the railway or railways should be constructed and ready for operation, and within which the residue should be completed, they proceeded to declare “that the time,if any, unavoidably consumed by the pendency of legal proceedings or by the interference of the public authorities, or their neglect to consent, shall not be deemed a part of any period of the time within which construction and completion of the railway or railways is required to be made. But the time, if any, during which such unavoidable delay shall continue, shall be added to each of the periods hereby otherwise limited for construction and completion of the railway or railways.” No such declaration or qualification of the time was required from the commissioners, for the act by its thirty-eighth section had prescribed the only qualification intended to be allowed by way of enlargement or extension of the periods fixed and determined by them. In that it was “provided, however, that the time, if any, unavoidably consumed by the pendency of legal proceedings shall not be deemed a part of any period or time limited in this act.” This part of the section was enacted in such terms as to execute itself. It required no repetition from the commissioners. Neither did they have the power to enlarge the provision by including any other interference of the public authorities, or providing against the contingency of their neglect to consent, for these were matters regulated wholly and entirely by the statute. But inasmuch as the commissioners did fix and determine the time, they did comply with the requirements of the statute relating to that subject. And after having done so they could not invalidate or render that compliance inoperative by attempting to add ,a qualification or a provision, for its extension, which they had no power or authority to make. The latter was a void attempt to exercise authority with which they had not been invested, and it could not have the effect of impairing or changing, in any respect, the efficiency of the act which they had previously, as well as legally, performed.

The railways which the petitioner has been allowed to construct are designed to be laid over private property, with the exception of that portion included in One Hundred and Twenty-ninth street, .and that which will be occupied by crossing the streets its routes will intersect. In this respect it is distinguishable from that of the routes of the Cable Railway Company, which, so» far as they have been involved in controversy, are laid upon the public streets of the city. It is designed to construct it as it has been laid out and located over private property, and its right to do that, so-far as it now has been controverted, matured before the passage of the Street Surface Railway Act of 1884. Neither of the objections arising in that case appear in the one now before the court. For as to the designation of the time itself, it was fixed and determined by the commissioners as the law required that to be done, while in the other case it was proposed to commence that time from the completion or occurrence of other events, which it was no part of the province of the commissioners to take into consideration for that purpose. Neither of the objections which have been taken to the petitioner’s proceedings appear to have been well founded, but the-order which was made at the hearing was warranted by the law, as well as the circumstances of the case, and it should be affirmed, with the usual costs and disbursements.

A similar state of facts has been presented in support of th& appeal of Joseph O. Farrington and another from a like order, and the same disposition should accordingly be made of that case.

Brady, J., concurred; Davis, F. J., concurred in the result.

Order affirmed, with ten dollars cost and disbursements.


text:
    MARIE A. WITTHAUS, Appellant and Respondent, v. FREDERICK C. C. SCHACK, Appellant and Respondent.

      Action for dower — right to recover damages for withholding it — what expenses and: cha/rges cannot be allowed to the defendant as against the rents collected — what i» a sufficient seizin on the part of the husband — amendment to a judgment so as-to make it include other lands — when not allowed.

    In this action, brought by the plaintiff to have a deed in which she had joined with her husband set aside, and to recover her dower in the premises described therein, an interlocutory judgment was entered, setting aside the deed as to-a part of the property, and adjudging the plaintiff to be entitled' to dower therein. Before the commencement of the action she gave notice to the defendant, who was in possession of the property, of her claim for dower. After the commencement of the action a portion of the property was sold upon the foreclosure of mortgages, in which the plaintiff had joined, given prior to the execution of the deed sought to he set aside; another parcel was sold by the defendant, but in neither case were the proceeds arising from the sales sufficient to satisfy the charges and incumbrances on the property.
    By the judgment, the defendant was charged with one-third of the rents and profits of these pieces of land, actually collected by him between the time of the notice of plaintiff’s claim for dower and the sale, and was adjudged to pay them to the plaintiff as the damages which she was entitled to recover because of the withholding of her dower by him for that period.

      Held, that this was proper ; that while a sale of the property during its pendency would deprive the plaintiff of the actual possession of any part of it, it would not deprive her of the damages sustained by reason of her dower having been withheld by the defendant from the time of her demand therefor to the time of the sale.
    That the defendant was not entitled to charge against the amounts received by him out of this one-third of the property, the expenses to which he had been subjected previous to the time when the plaintiff’s dower was demanded.
    That he was not entitled to any commission for receiving the money the plaintiff was entitled to recover.
    That where a wife joins with her husband in executing a deed, absolute in form, but, in fact, by way of security, for the payment of his debts, and such (Security has not, at the time of the husband’s death, matured into an absolute title, nor has the property been then sold, the husband is seized of the property so as to entitle his widow to dower therein.
    A receiver of the property was appointed upon the application of the plaintiff, whose office terminated before the conclusion of the action.

      Held, that in the absence of evidence showing that the defendant had been compelled to pay any moneys to the receiver, no deduction could be made from the amount he was directed to pay to the plaintiff, for the fees of the receiver; as such fees, if any, would have to be paid by the plaintiff.
    After the entry of the judgment the plaintiff moved to amend it by including a formal recovery by her of her dower in certain other lands still held and possessed by the defendant.

      Held, that the motion was properly denied.
    Appeals by both tbe plaintiff and defendant from an order confirming tbe report of a referee, and from tbe judgment entered upon it, and by tbe plaintiff from an order denying a motion to amend tbe judgment entered in tbe action, and by tbe defendant from an order excluding tbe allowance of tbe expenses of a receivership.

      G. Zdbriskie, for tbe plaintiff.

      Lewis Sanders, for tbe defendant.
   Daniels, J.:

By the judgment which has been entered, the plaintiff has been adjudged entitled to dower in the property owned by her husband at the time of his decease, and situated south of Fifty-ninth street, in the city of New York. She joined in a deed of this and other property with her husband to the defendant, in trust for the payment of certain creditors, but so far as she was a party to it, it was vacated and set aside as to the property south of Fifty-ninth street. Before the action was commenced, and on the 14th of April, 1877, she gave notice to the defendant of her claim for dower in this property; and her action to vacate so much of the deed as was executed by herself and to establish her right to dower in the property of her husband, was commenced in the latter part of the year 1878. After an interlocutory judgment establishing her rights was entered, an appeal was taken to the General Term of this court (31 Hun, 590.)

After that was decided, a second hearing of the action also took place, upon which the judgment was so far modified as to limit the right of the plaintiff to recover in this action against the defendant, to the proceeds of property sold by him, in which she was entitled to dower, and to the rents and profits received by him while the property remained in his possession and under his management. It was afterwards made to appear, upon a reference ordered to take and state his accounts, that he held no proceeds of any part of the property which he had sold, but that during the pendency of the action, and before the recovery of the interlocutory judgment, parcels of land known as 7, 9 and 11 East Twentieth street, were sold under a judgment of foreclosure, recovered upon mortgages executed by the plaintiff and her husband, before the deed in which she joined was executed or delivered to the defendant. This sale took place after the 1st of February, 1880, and the proceeds were insufficient to pay the amounts directed by the judgment to be paid. The defendant also, in January, 1881, which likewise preceded the recovery of the interlocutory judgment, sold property known as 602 Sixth avenue, but after applying its proceeds upon charges and incumbrances, no part was left out of which the plaintiff was entitled to be endowed. But from the time when she demanded her dower of him, to near the time when these sales were made, he received the rents and profits of these four pieces of land, and upon the accounting had before the referee, he was charged with one-third of such rents and profits, as the damages which the plaintiff was entitled to recover because of the withholding of her ■dower by him from her during that period. The amounts allowed against him did not include this entire period, but for a short time, during the latter part of it, he was not charged with any rents or profits of the property. The omission of the referee to make that ■charge against him in his accounts seems to have proceeded upon the fact that no collections were made for the omitted part of the time. And, as it does not appear from any evidence produced, or any finding of the referee, that the failure to collect and receive the rents and profits for this part of the time, arose out of any carelessness or misconduct of the defendant, it cannot be held, upon this appeal, that the referee has erred in not extending the liability of the defendant over the latter part of the period, during which he held and managed this property. The amounts omitted, in any event, are not large, and probably no injustice has been done to the plaintiff in the adjustment made by the referee.

In bis first report the defendant was charged with interest, at the legal rate, upon the amounts received by him, but that under an order of the court permitting further evidence to be taken, was reduced to two and one-half per cent. This reduction was 'made upon evidence from which the referee concluded that it was all that the defendant had realized out of the moneys while they remained in his hands. And as to that he was sustained by the testimony of the defendant, who stated that to be about the amount of interest realized by him. He was accordingly right in limiting the interest to that rate, inasmuch as there was no reason for imputing bad faith to the defendant in the use of the money.

The defendant denied the right upon the hearing before the referee, as he has upon these appeals, of the plaintiff to recover against him by way of this apportionment of the rents and profits of the property, damages for the withholding of her dower from her. By the second and third of his exceptions, which were addressed to this subject, they were placed upon the ground that there had been no admeasurement or assignment of her dower in the property, the premises having been sold subsequent to the commencement of the action. But these exceptions, as they were taken, are certainly not well founded, for the law does not and has not. required that there shall be an assignment of dower before damages-for withholding it from the plaintiff can be recovered by her. Under the practice preceding that established by the Code of Civil Procedure, dower could only be admeasured after the recovery of a-judgment for it by the widow. (3 R. S. [6th ed.], 578, § 51.) And the same practice has been preserved by section 1607 of the Code of Civil Procedure. Before that point in the litigation can be reached the right of the plaintiff to dower, as well as her right to damages, when they are claimed as a part of the action, and the extent of those rights, must be settled by the judgment. And where that may be the case she clearly could not be defeated of her right to the damages recovered, by reason of the fact that the property had been sold under superior incumbrances before her dower should be actually assigned or admeasured. "What the law, as it was declared by the preceding statute, and has been continued by the Code, required was, that the widow in her action should recover her dower in lands of which her husband should have died seized, and that in such action she should also be entitled to recover damages for the withholding of such dower. (2 B. S., [6th ed.], 1122, §19; Code of Civ. Pro., § 1600.) For this purpose her action would proceed upon the facts as they existed at the time when it was commenced. And while a sale of the property, during its pendency, would deprive her of the right to the actual possession of any part of it, it would not deprive her of the damages sustained by her dower in the land being withheld from her by the defendant during the pendency of so much of the action as extended to the period in which the sale of the property should take place. What the statute in effect required was that her right to dower in the property should be legally established. And where that is the fact, and the lands out of which she should be endowed are in the possession of the defendant as these were at the commencement of the action, there the law entitles her to damages for the withholding of her dower. This-must be necessarily so from the effect of the sales made of the property, for it deprived the plaintiff of no more than the physical ability to take her dower in such lands. The sales removed those lands out of the charge, management and possession of the defendant, but they in no manner interfered with the advantages derived by him from them possession and use up to the time when the sales actually took place. And to the extent of one-third of those advantages they were derived wholly from the plaintiff’s right to a life estate in the property. It was wrongfully withheld by him from her while these rents and profits were being received by him. He was divested of no part of them by the sales made of the lands, but continued to hold and possess them up to the time of the recovery of the final judgment in the action. And as one-third of the amounts received by him was derived from that part of the property in which the plaintiff was entitled to be endowed, she was legally entitled to recover her damages to that extent from the defendant. Her right in this respect, both by the preceding statute and section 1600 of the Code of Civil Procedure, has been declared and defined in the same manner, and by both she was secured such damages to the extent of one-third part of the annual value of the mean profits of the land, to be estimated against the defendant, from the time of demanding her dower. (2 R. S. [6th ed.], 1122, § 20.)

These provisions do not require to be so strictly construed as to render her right to damages dependent upon the actual recovery and possession of the property in which she may be entitled to be endowed. They are sufficiently complied with by the adjudication which, was made in this action, that she was entitled to recover her dower in the property, and the fact that she was deprived of the physical benefit of the recovery, by the sale of the property under superior incumbrances, made while the defendant was wrongfully keeping her out of possesssion, cannot, upon any just principle, entitle him to withhold these damages from her. They were, on the contrary, as her right in the property has been adjudicated, so much money received by him for her, which he was rightly held liable to pay over. The case of Kyle v. Kyle (67 N. Y., 400) is, in no respect, in conflict with the right of the plaintiff to relief to this extent in her action. For in that case no adjudication whatever had been made as to the right of the widow to recover her dower, but the executors had allowed and paid to her a gross sum of money out of the testator’s estate, which the surrogate sanctioned but which the courts, on appeal, held to have been unauthorized. That adjudication, by no construction of it, can be held to sanction such an application of the statutes as would protect the defendant in withholding these damages from the plaintiff, because of the circumstance that during the time-he was contesting her right to dower in the property, the property itself was sold and placed beyond the reach or control of the judgment. Such a construction would be strikingly unreasonable and unjust, and it could not have been intended by the legislature that these statutory provisions should be subject to that infirmity. So far as 'the referee allowed the plaintiff one-third of the rents and profits received by him from these lands, while they were in his possession and after she had demanded her dower from him, his determination was right and lawfully confirmed by the judgment.

The objection that the plaintiff’s husband did not die seized of the property has not been taken by the exceptions filed on behalf of the defendant. But if it had been, the facts of the case would not have sustained it, for the deed made by him to the defendant,, in which the plaintiff joined, was not absolute, but by way of security accompanied with a full power of sale. Subject to that security, and the execution of the power, the husband continued to be seized of the property, and was so at the time of his decease. For neither the security itself had then matured into an absolute title; nor had this part of the property been conveyed by the authority vested in the defendant over it by the deed. (Odell v. Montross, 68 N. Y., 499.)

The defendant was not entitled to charge against the amounts received by him out of this one-third of the property the expenses to which he may have been subjected previous to the time when the plaintiff’s dower was demanded. The statute has subjected her right to damages to no such contingency, but has declared the-defendant to be liable for the annual value of one-third of the profits,, with interest from the time when the demand for dower was made,, and no more than that was allowed by the referee upon the accounting.

It does not appear from the case that .there were any general expenses of the management of the property by the defendant which, in part, should have been deducted from the amounts allowed bj the referee. Neither does he appear to have been entitled to any commissions for receiving the money the plaintiff has been held entitled to recover. The statutes have subjected her claim for damages to no diminution by reason of commissions, but have declared, in general terms, her right to one-third of the annual value of the mean profits of the property, with interest, and the referee proceeded upon that view in the accounting taken before him. Neither of these exceptions presented to the report of the referee are well founded. They were rightly overruled and judgment directed in favor of the plaintiff, as it was afterwards entered, for the recovery of these damages by her.

A receiver of the property in the early state of the litigation seems to have been appointed at the instance of the plaintiff. His office was terminated before the conclusion of the action. But what he did, or whether he was entitled to any commissions, under his appointment, does not appear by the case, and the order, therefore, denying the defendant’s right to have his commissions off set against the moneys in his own hands, which are due and owing to the plaintiff, does not seem to have been unauthorized. If the receiver shall be finally entitled to commissions, they will be paid necessarily by the plaintiff. As long as the defendant has made no such payment he is clearly entitled to no allowance on their account against her.

A large number of exceptions were also filed to the referee’s report on behalf of the plaintiff. The more material and important of them have already been disposed of by what has now been said, or was held in the decisions previously made in this action. It is not necessary that these exceptions should be examined in detail, but for their disposition it is sufficient to say that none of them seem to be so far sustained by the facts of the case as to require any change to be made in the accounting had before the referee.

The object of the motion to amend the judgment was to include a formal recovery by the plaintiff of her dower in lands still held and possessed by the defendant. The issues, as they had been framed in the action, did not contemplate, or include, the trial of that subject-matter as to these particular pieces of property. They might have been included within the case presented by the plaintiff, but they were not in such a manner as to leave the court at liberty to declare and determine the specific interests of the plaintiff in or concerning these pieces of land. It was, therefore, held as the most proper course to be taken, after the judgment vacating and annulling the deed so far as it had been executed by the plaintiff, that she should bring an ordinary action for dower in these pieces of property. And no very substantial reason appears which would justify a departure at the present time from that direction. The subject-matter included in the judgment in this action, as the facts of the case have arisen since its commencement, is substantially within the power of the court as a court of equity, and the judgment has disposed of all the rights and interests of the plaintiff which are incident to such an action. It is true the case might have been made broader and included all the legal rights of the plaintiff in the property still in the possession of the defendant. But as it was not, and as the judgment is now complete over the equitable controversy between herself and the defendant, it is most judicious to leave it as it has been entered, and not to permit the litigation in this action to be opened again and procrastinated, as it would be by the proposed change, to such an extent that the plaintiff, for the remainder of her life, might be deprived of all its advantages. It is due to her that she should, as speedily as practicable, secure the fruits of this litigation, and that her right in this respect should not be postponed until a further and additional controversy may be settled between herself and the defendant. The order denying her application to change the judgment in this respect was accordingly well sustained by the facts appearing in the action. As the case has been presented, the order affirming the referee’s report was right, and so was the judgment entered upon it, and the order denying the defendant’s application to set-off commissions alleged to be owing to the receiver, and the order denying this motion, made on behalf of the plaintiff, were also correctly made, and they should all be affirmed, but without costs.

Davis, P. J., and Brady, J., concurred.

Judgment and order affirmed, without costs.


text:
    SARAH McCALLUM, as Administratrix, etc., of WILLIAM McCALLUM, Deceased, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Negligence — passenger in a street car not responsible for the negligence oj the conductor or driver — statutory signals must he sounded at intervals — 2 B. 8. (Gth ed.), 542, sec. 61 — facts not connected with the issues need not be submitted to a jury

    This action was brought to recover the damages occasioned by the death oí the plaintiff’s intestate by reason of the collision of a locomotive engine, belonging to the defendant, and a street car in which the intestate was riding as a passenger. The collision took place near the hour of twelve o’clock at night, at a point where the street railroad crosses the line of the railroad on which the engine was running. The evidence as to whether or not the bell of the engine was rung or the whistle sounded was conflicting. The conductor of the car in which the intestate was, and the conductor and the driver of another car approaching the railroad a block off who had their attention directed to the subject, all testified to the effect that they did not hear the signals.
    Held, that the question was properly submitted to the jury.
    That, as the intestate was a passenger upon the car, having no control over its movements and nothing whatever to do with its direction or management, the negligence of the driver or conductor was not imputable to him, and the fact that their negligence contributed with that of the defendant’s engineer and fire- ■ man, in causing the accident, would not defeat the plaintiff’s right to recover. That tho intestate himself was not bound to stop, look or listen for an approaching train, but could, as a passenger, reasonably assume that proper care and attention would be given at the crossing by those in charge of the car, befoie an attempt would be made to go over it.
    The evidence of the defendant showed that the engine stopped at Atlantic avenue, which was distant the width of three blocks and two streets from the place of the collision.

      Held, that the court properly refused to charge that, “from the fact of the engine in question starting from Atlantic avenue, it was a sufficient compliance with the statute if this whistle was blown immediately upon or after leaving Atlantic avenue,” as the statute (2 R. S. [6th ed.], 542, § 61) required that the whistle should be sounded “at intervals until it shall have crossed such road or street.”
    The court was also requested to charge that “ a failure to recover, or a recovery, in no way effects the plaintiff’s rights in an action against the Broadway Railroad Company.”

      Held, that it was proper to refuse so to charge.
    The obligation of a railroad to keep a flagman at a station considered.

      Appeal from a judgment in favor of the plaintiff, entered on 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.

      Alfred 0. Ohwpm, for the appellant.

      P. Mitchell, for the respondent.

      The same rule was applied in the case of Harvey v. The New York, Woodhaven and Rockaway Railroad Company, decided at this term, but not reported. (See post decisions in cases not reported, First Department, January Term, 1886.)

   Daniels, J.:

The intestate was killed on the night of the 10th of August, 1884, by a collision of a locomotive engine, belonging to the defendant, and a street car on the Broadway Horse railroad. The collision took place near the hour of twelve o’clock at night, at a point where the Broadway Street railroad crosses the New York and Manhattan Beach railroad, in East New York, on Long Island. The engine struck the car as it was crossing the railroad track, carrying it, as the evidence tended to show, ninety or 100 feet from tbe point of collision. The intestate was a passenger in the ear, and was instantly killed. The action proceeded upon the legal ground that neither of the signals required by the statute was given by t'he engine as it approached this crossing, and evidence was produced on behalf of the plaintiff, who is the widow of the intestate, tending to show that neither the whistle was sounded nor the bell was rung until just at the time of the happening of the collision. It has been urged, in support of the appeal, that the evidence as to this fact was so defective as not to permit the case to be submitted to the jury, for, on the part of the defendant, positive testimony was given that' the whistle itself was sounded and the bell was rung until the time when the collision took place. But it is clearly a misapprehension of the plaintiff’s evidence that all her witnesses. were able to say was, that they did not hear either of these signals, for both the conductor of this car and the conductor and driver on a Eulton avenue car, at the same time approaching the raikoad, one block distant from the raikoad crossing on Broadway, had their attention directed to the fact whether trains were moving upon the railway, and they were, as they were about to cross, on the look-out for cars. The conductor on this particular car heard no whistle until the engine was about to strike it. The conductor upon' the Eulton avenue car first had his attention directed to the train by the headlight of the locomotive. The evidence of the driver on the same car was to the same effect; his attention was directed to the approach of the engine, but he heard no whistle or bell until it had passed him. This evidence was entirely different,, therefore, from that given in Culhane v. New York Central and Hudson River Railroad Company (60 N. Y., 133). For' there it did not appear that the witnesses, testifying that they did not hear the bell, had their attention directed in any manner to the approach, or probable approach, of a train, and the same observation is equally applicable to the case of Chapman v. New York Central and Hudson River Railroad Company (14 Hun, 484), and McKeever v. New York Central and Hudson River Railroad Company (88 N. Y., 667). These witnesses, in the course of their employment, were passing over this crossing and understood something of the movements of the trains upon the railroads, and were accordingly upon the look-out to see whether a-crossing could be safely made or not, and if the bell was rung or-not; and if the bell was rung or the whistle was sounded, there was certainly a decided probability that they would have heard it when they were in these positions. Besides-that, the witness Smith, who was the conductor on the car in which the intestate was killed, did testify as a fact that the bell was not rung and the whistle was not sounded.. These questions were propounded to him: “ When did he commence to blow the whistle ? ” A. “ I never heard the whistle until the engine struck the car ; I turned my head as I jumped and lie-blew a sharp whistle.” Q. “ Was there a whistle or a bell rung before that?” A. “No, sir.” There was a conflict, therefore, decidedly in the evidence concerning these facts and the determination of that conflict was an appropriate subject for the decision of the jury.

Evidence was also given tending to prove that the driver and the con ductor of the street car had not been sufficiently on the watch for the-approach of the engine, for it appeared that the car had commenced to-cross the railroad at the time when the engine was discovered. But if it should be held that both the driver and the conductor of the street car were negligent in this particular, it would not prevent the plaintiff from maintaining her action, for it was proved that the intestate, .■although himself a car conductor, was' at this time a passenger on this car. He had no control over its movements, and nothing whatever to do with its direction or management, but that was wholly committed to the driver and conductor, and if they, as well as the engineer and fireman on the defendant’s engine, were chargeable with negligence that would not prevent the plaintiff from maintaining this action, for she might then have an action for damages against either or both of the railway companies. (Dyer v. Erie Ry. Co., 71 N. Y., 228.) The point was taken at the close of the trial that the intestate himself was bound to stop, look or listen for an approaching train, but no obligation of that description was imposed upon him by law. He was a passenger, and as such could reasonably assume that proper care and attention would be devoted to the crossing by those in charge of the car, before an attempt was made to go over it. It was not for him to stop, look or listen, but for the persons who had charge of the vehicle in which he was being carried, and if they failed to do that, as due care requires them to do it, and by reason of that failure and the carelessness of the persons in charge of the engine the accident happened, the •defendant itself may be held liable for the consequences.

Proof was also given, on behalf of the plaintiff, that the engine was running at an unusually high rate of speed, it was described by the driver on the Fulton avenue car as an “ enormous speed,” going faster than any other engine he had ever seen before. That was ■denied on behalf of the defendant, whose witnesses testified that the ■speed was very moderate, and not exceeding about fifteen miles an hour. Which of the witnesses was right in the testimony concerning the speed of the engine was for the jury to decide, for still other witnesses testified, on behalf of the plaintiff, that the engine was moving at a high rate of speed. In this connection the court stated to the jury that the rate of speed was a fact they might consider in connection with the testimony, that there was no flagman and no gate at the crossing, and with the testimony as to the ringing of the bell and the blowing of the whistle. But it was added, then, that this could only be done “for the purpose of determining whether the railroad company acted with ordinary prudence in the running of its trains.” This was no more than directing the attention of the jury to the facts and circumstances which were incident, to the management of the railroad at the time, for them to determine whether negligence had been established against the defendant. For it was further added that “the question of speed is only a circumstance to be taken into consideration in connection with the other evidence,” and “there is, moreover,, no law either on the statute books or otherwise, that makes it the duty of a railway company to keep a flagman at a crossing, or to have a gate there.” But the omission of these precautions was referred to as a fact indicating the necessity for the observance of care in giving one or more of the statutory signals, and in order to avoid a misapprehension on this subject, it was further added by the judge that “it is not for the jury to say that the railroad company must have a flagman, or that they must have-a gateman, and that if they do not have these the company is necessarily negligent. It is only a circumstance to be taken into-consideration with the other evidence. The duty of the jury, upon all the evidence, is to decide whether the employees of the railroad acted with ordinary care and prudence in the running of this engine.” These points were afterwards brought up again by special requests for further instructions to the jury, when they were again directed that “ there has not been shown any obligation upon the defendant, at the time of the collision, to have any flagman stationed at the Broadway crossing,” and that “ the jury must not consider as constituting negligence the absence of a gate or flagman at the Broadway crossing at the time of the accident.” These additional statements were clearly sufficient to guard the jury against any possible misapprehension concerning the effect of the omission to maintain a flagman or gate, and to wholly confine them to the conduct of the persons having charge of the engine. The evidence on the part of the defendant showed that the engine stopped at Atlantic avenue, which was distant the width of three blocks and two streets from the point of the collision. And the court was requested to charge that, “ from the fact of the engine in question starting from Atlantic avenue, it was a sufficient compliance with the statute, if this whistle was blown immediately upon or after leaving Atlantic avenue.” The court declined and the defendant excepted. This refusal to charge was justified by the provision of the statute that the whistle, when that signal shall be relied upon, shall be sounded at intervals until it shall have crossed such road or street. (2 R. S. [6th ed.], 542, § 61.) Merely sound ing the whistle, therefore, as the engine was starting from Atlantic avenue, was not a compliance with this direction of the statute, and this request to charge was rightly refused. The sixth, seventh, eighth and ninth requests, relating to the management of the car in which the intestate was a passenger, and the conduct of the driver and its conductor, as has already been observed, were rightfully refused, as the defendant will not be relieved from liability, even if these persons could have seen the distance of 300 feet from the crossing in the direction in which the engine was approaching and failed to discover it, or otherwise negligently conducted themselves, as long as the intestate was no party to the failure, and had no knowledge of such misconduct. The court was also requested to charge that “ a failure to recover, or a recovery, in no way affects the plaintiff’s rights in an action against the Broadway Railroad Company.” That was very properly refused, for the fact had no connection whatever with the trial of this case, or the disposition which the jury should make of it on the evidence submitted to them.

It appeared upon the cross-examination of the engineer that he had been arrested and indicted for his conduct in causing this collision, but no exception whatever was taken to this evidence, as it was given by the engineer himself; and when the inquiry was made of the witness Howard, where an exception was taken to the ruling that he might answer as to this fact, his evidence was in the negative, and, therefore, in no manner prejudicial or injurious to the defendant.

As the evidence was given, the facts in the case, on which the liability of the defendant depended, were for the consideration and decision of the jury. (Kavanaugh v. Wilson, 70 N. Y., 177; Sherwood v. Hauser, 94 id., 626.) The case appears in'all respects to have been carefully, as well as correctly, tried at the circuit, and no error to the prejudice of the defendant intervened, and the judgment, as well as the order from which the appeals have been taken, should be affirmed.

Davis, P. J., and Braody, J., concurred.

Judgment and order affirmed.


text:
    JOSEPHINE Z. ROSE, Appellant, v. MENSOR P. SAUNDERS, Respondent.

      Valse representations — what representations will sustain an action for damages.

    This action was brought to recover damages arising out of the alleged fraud of the defendant, consisting in his procuring from the plaintiff, by means of false representations, a writing which permitted him to leave the jail liberties of the county of New York, where he was under arrest under an execution against his person, issued upon a judgment recovered by the plaintiff, and to proceed to the city of Brooklyn. The complaint was dismissed upon the ground that the representations made by the defendant, to induce the plaintiff to subscribe the writing permitting him to leave the jail liberties, were that it would not affect her rights or interests in the judgment, or her remedy for the enforcement thereof.
    Upon the trial the plaintiff offered to show that, in addition to the aforesaid representations, the defendant made certain other representations charged in the complaint, viz., that he desired the paper to 'prevent his arrest, or to prevent his being molested in Brooklyn by the sheriff, upon an execution out against him there, and that he wanted to give up books and papers that he held at that time, and that he could not give them up without this paper. Held, that the court erred in excluding this evidence, as the proof of the making of those representations, and their falsity, would justify a recovery by the plaintiff.
    Appeal from a judgment, entered upon the verdict of a jury of six cents in favor of the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Samuel H. Randall, for the appellant.

      William Henry Gale, for the respondent.
   Daniels, J.:

Two causes of action were set forth in the complaint — one for fraud, arising out of the procurement by the defendant of a writing from the plaintiff, permitting him to leave the jail liberties of the county of New York, where he was under arrest under an execution against his person, issued upon a judgment recovered by her, and to proceed to the city of Brooklyn, which he did — and the other for slanderous words charging her with sexual misconduct. The court, at the trial, dismissed the first cause of action, and the jury rendered a verdict in her favor upon the second for the sum of six cents. The dismissal of the first cause of action was directed upon the ground that the representations made by the defendant to induce the plaintiff to subscribe the writing permitting him to leave the jail liberties were, that it would not affect her rights or interests in the judgment or her remedy for the enforcement thereof; and if that had been the extent of the representations made, inducing her to execute the writing, the dismissal would probably be correct, for the incorrectness of a mere legal opinion as to the effect could not be made the basis of an action for damages for deceit or fraud. But this was not the only representation set forth in the complaint, and which the evidence given upon the trial tended to prove. It was alleged, and evidence was given to establish the allegation, that the defendant represented that he desired the paper only to prevent his arrest, or to prevent him from being molested in Brooklyn by the sheriff, upon an execution out against Mm there, and that he wanted to give up books and papers that he held at that time, and that he could not give them up without this paper. These representations the plaintiff testified she believed; and to complete her right of action, by showing them to have been false and fraudulent, evidence was offered tending to prove that these statements were false, from which, if it had been given, the jury might have inferred an intent on the part of the defendant to defraud the plaintiff. They were in no manner in the nature of opinions concerning the effect of the paper procured from the plaintiff, but they included material matters of fact, and if they were falsely and fraudulently made, and in part induced her to sign the paper, a right of action existed in her favor against the defendant for damages.

The legal principle upon this subject is that if one party, for the purpose of inducing the other to contract with him, shall state that which is not true in point of fact, and which he knew, at the time he stated it, not to be true, and if, upon that statement of what is not true, and what is known by the party making it to be false, the contract is entered into by the other party, this, generally speaking, and unless there is more than that in the case, there will be at law an action open to the party entering into such a contract, an action of damages grounded upon the deceit.” (Oberlander v. Spiess, 45 N. Y., 175-178; White v. Merritt, 3 Seld., 352, 356; Taylor v. Guest, 58 N. Y., 262, 266.) And it is not requisite that the fraudulent representations shall be the only moving inducement to the contract, but all that is required is that it would not have been entered into if they had not been made and relied upon. (Addington v. Allen, 11 Wend., 375.) The evidence which was offered and rejected would have, if it had been received, sufficiently brought the case within these legal principles to require its submission to the jury. It ought not, therefore, to have been rejected, and this part of the plaintiff’s complaint dismissed. There is also reason for believing that injustice was done to the plaintiff by the nominal verdict rendered in her favor upon the other cause of action. But probably, under the case of Wavle v. Wavle (9 Hun, 125), the court would not be justified in directing a new trial because of this circumstance. But as to the other part of the case, the law is in the plaintiff’s favor. She should have the opportunity, which was denied her at the trial, of giving evidence to prove that the representations concerning the facts referred to by the defendant were, at the time, known to him to be false, and were made to deceive her to her prejudice.

The judgment and order should be reversed, and a new trial directed, with costs to abide the event.

Davis, P. J., and Beady, J., concurred.

Judgment and order reversed, new trial ordered, costs to abide event.


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

text:
    SAMUEL WEEKS and Another v. JACOB WEEKS CORNWELL and Others, Respondents. HENRY A. WEEKS and Others, Appellants, Impleaded with GEORGE W. WEEKS and Others.

      Practice — no order for the payment of disbursements cam be made uniü a final judgment has been recovered,

    In this action, brought to partition certain real estate in the city of New York, an interlocutory judgment, adjudging the property to belongto the heirs-at-law of one Jacob Weeks, was modified at the General Term as to the persons entitled to the property, without determining the names or shares of the real owners, and a reteree was appointed to ascertain and report who were the persons entitled to the property and their rights and interests therein. While the reference was pending, the attorneys for certain of the parties moved for and obtained an order requiring a receiver of the rents and profits, who had been appointed in the action, to pay out of the funds in his hands disbursements made by them amounting to $1,443.97.

      Held, that the order should be reversed ; that the right to recover costs was to be determined by the judgment finally to be entered in the action, and that until such a judgment had been recovered no order for the payment of costs or disbursements should be made.
    Appeal from an order of Mr. Justice Donohue, made at Special Term (at Chambers), directing the payment to the defendants Jacob Weeks Cornwell and others, or to their attorneys, Messrs. Yan Winkle, Candler & Jay, of certain disbursements said to have been made by them during the litigation.
    The action was brought to partition a valuable property. The extent of the rights and interests of all parties is put in dispute by the pleadings. A trial was had at Special Term and an interlocutory judgment was there entered, adjudging the property involved in this action to belong to the heirs-at-law of Jacob Weeks, deceased. From that judgment several of the parties appealed. On the appeal the General Term “ modified ” said interlocutory judgment, and, as modified, affirmed it without determining the names of the parties entitled to the property, or their shares. By this decision Mr. Patterson was appointed, by the General Term, a referee to ascertain and report, among other things, who were the persons entitled to the property, and their rights and interests therein. That reference has been had; the referee has filed his report, to which many of the parties, including these appellants, have duly excepted, but the report has not yet been confirmed or the exceptions disposed of. A motion to confirm his report and a motion for a reargument upon the appeal from the interlocutory judgment were heard at the same term of this court, at which the appeal in this matter was heard.
    After the announcement of the decision of the General Term on the appeal from the interlocutory judgment, and pending the reference, the respondents, or their attorneys, made various disbursements in the conduct of the litigation, set forth in the affidavit on the motion as amounting in all to $1,442.97. The respondents moved for an order that they be repaid these disbursements out of a fund which had accumulated during the litigation, in the hands of John E. Ward, who had theretofore been appointed in this action receiver of the rents, etc., of the property sought to be partitioned. Respondents’ motion was granted, and an order was entered (being the order now appealed from) directing the receiver to pay to respondents, or their attorneys, the entire amount of such disbursements, including moneys paid for appraisers’ fees, for printing judgment, opinion, briefs, findings, etc.; for “ traveling expenses,” for “lithographing and copying papers,” etc., and on this order they at once collected the money from the receiver.

      Frederick XL. Man and A. H. Stoiber, for the appellants.

      Xiamen B. Candler, for the respondents.
   Daniels, J.:

The order directed this sum of money to be paid by the receiver <of the property out of moneys received by him as the rents and income from the property in controversy. The amount ordered to be paid consisted of disbursements expended during the progress of the hearing before the referee for the purpose of showing the value of the different interests of the persons entitled to participate in the partition of the same property. But neither that fact, nor any other which has been made to appear, was authority for this order, for it had not been determined that the parties in whose favor it was made were entitled to recover these expenditures in any form in the action, or to their reimbursement out of the income of the property. Upon the interlocutory judgment following the trial at the Special Term, no direction for the recovery of either costs or disbursements was given, and by the order or decree directing the reference upon which the disbursements were made, the judgment was modified “ with costs of all parties to be paid out of the funds, and such allowances as may be awarded on the final hearing on such report of said referee by the Special Term.” This award of costs included no part of these disbursements, but it was restricted, so .far as it was made operative, alone to the costs of the appeal, and by no judgment or direction whatever had the right been created to charge these disbursements against either of the parties to the action or any fund existing in it. Their disposition necessarily depended upon the order or direction which might be given upon-the hearing or confirmation of the report made by the referee. And when that may be given they will form so much of the costs-to be recovered by the judgment and obtained under its authority. No precedent whatever has been found for such a direction as is contained in the order, and if it could be it should not be followed, on account of the injustice which would not fail to arise in the disposition of money subject to the order of the court in like manner. It is no answer to the objections which have been urged that the persons in whose favor the order has been made may be entitled to a larger proportion than the amount directed to be paid of the rents and income of the property, for that cannot surely be ascertained until this case has been finally decided and determined. But without depending very much upon this circumstance, it is sufficient to say that the right to recover costs is to be determined by the judgment finally to be entered in the action, and until such a judgment has been recovered, an order for the payment of cost» or disbursements should not be made. If it could be sustained, as this order has been made, it might equally be so as to all the disbursements made by the other parties, in the eourse of the litigation, and also extended so as to include their probable costs, and that would very manifestly be an improper thing to do.

The order from which the appeal has been taken should be reversed, and the motion should be denied, with the usual costs and disbursements.

Brady, J., concurred.

Davis, P. J.:

I concur, except as to costs. No costs, I think, should be allowed on the appeal or of the motion.

Order reversed and motion denied, with ten dollars costs and; disbursements.


text:
    WILLIAM E. LUCAS, Appellant, v. THE EAST STROUDSBURG GLASS COMPANY (Limited), Respondent.

      Contract to deliver goods — construction of an agreement to fill orders gimen within a fixed period— set-off— when not allowed as against an assignee.

    The defendant, a glass manufacturing company, signed a memorandum, dated l “ Newark, N. J., Aug. 21, ’79,” agreeing to takefrom one Squier orders “ during •one year from date,” foi certain quantities' of glassware therein specified, at prices named, delivered at Newark as ordered. The defendant having refused to deliver the glassware ordered by Squier, as provided in the contract, the plaintifE, to whom Squier had, on July 16,1881, assigned his claim for damages, brought this action to recover the same.
    On August 19, 1880, Squier made an order under the memorandum for glassware, with which the defendant failed to comply. Upon the trial of this case, i the court charged that “the defendant was entitled to a reasonable time to fill each order given by Squier during the year of its existence, and that an order given for a large quantity of goods on the 19th.day of August, 1880, when the contract by its terms expired on the 21st of August, 1880, was not given in time, and the defendant was not bound to fill it.”

      Held, error, that an order given on the nineteenth of August was within the terms of the agreement, and that the defendant could not refuse to fill it because it had not been given early enough to enable the company to do so before the expiration of the time mentioned in the agreement.
    Before the assignment to the plaintifE was made, the defendant brought an action in New Jersey to recover the price of glassware ordered and delivered to Squier, in which the latter sought to recover the damages sustained by reason of the failure of the defendant to fill his orders as required by the agreement. Before the trial of that action, the assignment was made, for which reason the defense interposed by Squier in that action was, on the motion of the company, stricken out, and a judgment was rendered in its favor for $449.16 and costs.
    Upon the first trial of this action, the General Term reversed a decision of the court below, holding that this judgment was a defense to the action. Upon the second trial, the said judgment was held to be a set-off or counter-claim against the claims for damages made by the plaintifE in this case.

      Held, that this was error.
    Appeal by tbe plaintiff from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial made apon the minutes of the justice before whom the action was tried.

      J. P. Osborne, for the appellant.

      S. R. Ten Eyck, for the respondent.
   Daniels, J.:

The action was for damages upon a contract for. the sale of glassware. The contract was made between William S. Squier and the defendant. A memorandum of the agreement was subscribed on behalf of the defendant by its treasurer, concededly under its authority. This memorandum is as follows:

William S. Squier.

“ Newark, N. J., August 21, 1879.

“East Stroudsburg Glass Company. '

“ Gents. — I will take as follows during one year from date:

2,000, or more, gross 2 oz. Cone’s inks.................. $1 05

1>000 “ “ -2 oz. Cone’s mucilage.............. 1 06

500 “ “ 8 oz. Cone’s mucilage.............. 1 20

500 “ “ 2 oz. Cone’s monitor................ 1 05

200 « “ pints P. 0........................ 4 00

300 “ “ quarts if. O...................... 5 25

100 “ “ amber pints...................... 3 75

“Quarts, $5; and 8 oz., $2.15; 4 oz., $1.50.

“ Amber or ligkCgreen above, more or less, sixty days acceptance.

“ (And will give you our moulds for the other bottles and other sizes.)

“ Delivered to Newark as ordered.

“ (Signed.)

“ EAST STROUDSBURG GLASS CO. [seal.]

“ J. H. Shotwell,

“Treasurer.”

According to its terms the glassware was to be delivered ah Newark as it was ordered. After the time had expired over which the agreement extended, and on the 16th of July, 1881, Squier assigned to the plaintiff all his right, interest and claim for damages, sustained for the non-performance of the agreement by the defendant. And evidence was given during the progress of the trial tending to show that glassware of the quality and description mentioned in the-memorandum was from time to time ordered by Squier from the defendant, and that it failed to comply with such orders. The market-price of the glassware advanced during the period mentioned in the agreement, and it was to recover the difference between the-price mentioned in the contract and the market-price upon the orders which the defendant had failed to fulfill, that this action was prosecuted.

On the 19th of August, 1880, Squier made an order under the memorandum for additional glassware of the description of that which the defendant agreed to sell and deliver to him, but that order was not complied with and the glassware was not delivered. And the court, in the submission of the case to the jury, held that “ the defendant was entitled to a reasonable time to fill each order given by Squier during the year of its existence, and that an order given for a large quantity of goods on the 19th day of August, 1880, when the contract by its terms expired on the 21st of August, 1880, was not given in time and the defendant was not bound to fill it.” To this portion of the charge of the judge presiding at the trial, an exception was taken. By the memorandum of the agreement which was entered into, the purchaser of the glassware was not required to make his order for its delivery at any specified period of time before the day fixed for the expiration of the contract; neither was it rendered necessary by anything contained in the memorandum that the glassware, which should be ordered, should be delivered before the expiration of that time, but what the defendant agreed to do was to deliver the glassware at Newark as it was ordered, and this agreement by its terms extended to the 21st of August, 1880. An order for glassware delivered on the 19th of August, 1880, was accordingly within the terms of the agreement, and the defendant could not refuse to fill it, because it had not been given early enough to enable.that to be done before the expiration of the time mentioned in the agreement. The contract continued in full force until the expiration of the year, which certainly included all of the 20th of August, 1880. And, if Squier ordered glassware before that time, the contract authorized and empowered him to do so, and the obligation arose out of the agreement on the part of the defendant to fill the order, as soon as that, in the exercise of reasonable diligence, could be done. And it would not be exonerated from the performance of its obligation if its exertions should be required to be extended beyond the time mentioned in the agreement, to fully comply with the order. The proposition, therefore, as it was charged and submitted to the jury, was not warranted by the agreement, and the exception taken on behalf of the plaintiff to this portion of the charge was well founded.

Before the assignment was made ¡by Squier to the plaintiff, and in the month of September, 1880, the defendant brought an action in the Circuit Court of Essex county, in the State of New Jersey, against Squier, to recover the price of glassware ordered by and delivered to him after the making of the agreement. In that action Squier appeared, and with his plea, served a notice of recoupment, stating the intention to set up as a defense, the damages sustained by him through the failure of the company to comply with orders given by him under the agreement, from time to time, for the delivery of glassware. But before a trial of the action was there had, the assignment was made of these claims to the plaintiff in this action. The plaintiff in the action, in the court of New Jersey, having acquired knowledge of that assignment, applied to the court to strike out this defense, and upon proof of that fact, and that this action had been brought in this court for the recovery of the same damages, an order was made by the court, in the State of New Jersey, striking out the notice of recoupment served in that action. After that the action was tried with this defense excluded from it, and the judgment recovered in favor of the glass company, for the sum of $449.16, besides costs. This judgment was relied upon as a defense to this action, but it was held not to be so by this court on a previous appeal, as to orders for the delivery of goods made under the contract which were not included in the action in the court of New Jersey. But upon the second trial of this action this judgment was relied upon as a set-off or counter-claim against the claims made by the plaintiff for the recovery of damages under the agreement, and it was held to be a proper subject for that purpose, by the court at the trial. The court was then requested to hold that this judgment could not be taken into account or treated as an off set, as it was recovered in 1882, after the assignment to the plaintiff of the cause of action sued on in this action. That was refused by the court and an exception taken to the refusal by the counsel for the plaintiff.

The plaintiff in this action was in no manner a party to the action in the State of New Jersey. The judgment was not recovered against him, but against his assignor, after the assignment itself had been made and delivered, and this action had been commenced. Neither was the right either of the plaintiff, or of Squier himself, for damages for the failure of the company to perform the agreement, in any manner, tried or heard in the action in the State of New Jersey. The judgment, as has been already held, was consequently not a legal defense as a bar to the plaintiff’s action. Upon that subject the courts have gone even farther than this court did in determining that the judgment was incapable of being used in that manner. For in Wolfe v. Washburn (6 Cow., 262) it was held that even the allowance of a demand as a set-off, in favor of a person not entitled to use it in that manner, was no bar to a subsequent action, by the party entitled to recover it, for its recovery. And in Foster v. Milliner (50 Barb., 385, 395) it was also held that, withdrawing a ■claim within the issue, before the completion of the trial, would prevent the judgment from being a defense to a subsequent action brought for its recovery. And to the same effect is the general principle that a judgment is only conclusive against the parties to the action in which it may be recovered, and those afterwards ■claiming under one or more of them. (Case v. Reeve, 14 Johns., 79; Campbell v. Hall, 16 N. Y., 575, 579.)

That a judgment recovered in this manner, after the assignment of a counter-claim not included in the trial or determination of the action, cannot be relied upon as a defense by way of set-off or counter-claim in the action of the assignee was held in Lowell v. Lane (33 Barb., 292). The point considered and determined there was in all material respects the same as it has been presented here, and it was held that such a judgment could not be relied upon as a defense against the assignee. And a similar ruling was made in Ogden v. Prentice (33 Barb., 160). The point was likewise examined in Martin v. Kunzmuller (37 N. Y., 396); Roberts v. Carter 38 id., 107); Perry v. Chester (53 id., 240), and Prouty v. Smith (10 Hun, 232). And the principle upon which these cases were disposed of is directly in conflict with the right asserted by the defendant at the trial, to use this judgment as a set-off or counter-claim against the claims made by the plaintiff in this action. This principle does not permit that to be done, inasmuch as the rights of the defendant in the judgment wholly accrued after the plaintiff had acquired, through his assignment, the demands which his action was brought to recover. And the provisions of the Code of Civil Procedure relating to counter-claims are no broader than this, so far as they might be invoked as applicable to a claim for the allowance of a judgment so recovered.

Under this explicit direction of the court, the jury had no discretion whatever left for them to act upon, but they were obliged to allow the amount recovered by the defendant against the assignor as an offset or counter-claim against the plaintiff in this action. This, as well as the other direction, not being supported by the authorities, require that the judgment and order should be reversed and a new trial directed, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment and order reversed, new trial ordered, costs to abide event.