text:
    AMELIA GROVES and THOMAS H. GROVES, Respondents, v. THE CITY OF ROCHESTER, Appellant.

      Municipal corporations — liability of, for the negligence of boards clumped with admin islrative duties — damages — when a verdict will not be set aside as excessive.

    On November 10, 1882, the executive board of the city of Rochester, acting under a resolution of its common council, awarded a contract to one Clanc3r, tor extending a Holly water-main in one of the streets of the city. Clancy, under the supervision of the superintendent of the cit3' water-works, and pursuant to the directions of the executive board, immediately commenced work, and on that and the following day had made an excavation in the said street between the sidewalk and the westerly side of the tracks of a horse railroad company, and also a second excavation crossing the first and intended, to be used for connecting the water-main with a hydrant to be placed in the sidewalk. On the night of November eleventh, the plaintiff, while walking in the street, and exercising due care, fell into the second excavation, which had been left open, unguarded and without light, and sustained injuries to recover damages for which this action was brought against the city of Rochester.

      Reid, that the city was chargeable with the negligence, if any, of the executive board, and that if such negligence were shown no notice to the city of the existence of the obstruction need be shown.

      That the fact that at the time of the accident the contractor had failed to comply with certain of the provisions of the charter, compliance with which was required to make the contract binding upon the city, did not relieve the defendant from liability.
    The plaintiff was, at the time of the accident, twenty-eight years of age, and had been, up to that time, remarkably healthy and active. Her injuries were severe and her sufferings very great. She still suffered from the effect of the injuries when the trial was had, and the opinion of physicians was that she might never fully recover therefrom, and that her life might be materially shortened thereby.

      Held, that a verdict of $19,000 would not be set aside as excessive.
    Appeal by the defendant from a judgment, entered upon verdict at the Monroe Circuit, and from an order denying a motion for a new trial on a case and exceptions.
    The action was brought to recover for personal injuries sustained by the plaintiff Amelia Groves, wife of the plaintiff Thomas II. Groves, alleged to have been occasioned by the negligence of the defendant. The plaintiffs recovered a verdict of $19,000.

      J. D. Beckley, for the appellant.

      John D. Lynn and Thomas Raines, for the respondents.
   Bradley, J.:

On the night of November 11, 1882, while walking northerly on the west side of North St. Paul street in the city of Rochester, the plaintiffs came to an obstruction produced by a pile of earth on the sidewalk, and turned out on the street side to pass around it, and in doing so the plaintiff Amelia fell into a trench then recently dug there and was severely injured. This constitutes the cause of complaint and of the action.

The common council of the city adopted a resolution authorizing and directing the executive board to extend a Holly water main in North St. Paul street from Atwater to Lowell street, pursuant to which the contract to do the work was by the board awarded to David Clancy on the tenth day of November, who immediately, under the supervision of the superintendent of the water-works of the city, and by direction of the executive board, proceeded with the work. And -on that and the following day, made the excavation which produced the obstruction of the sidewalk and the trench in question. The situation before the excavation was such that fora feet east of the sidewalk was the west track of a street railway, and four and eight-tenths feet west of the walk was a street fence. The trench — parallel with the walk, and between it and the railway, and nearly two feet from the latter — extended from its south end northerly six feet, where it intersected a trench at right angles with it of seven and two-tenths feet in length, extending west from within nine inches of the rail of the railway and about four inches from the timber upon which it rested. This trench extended upwards of three feet into the sidewalk. The trench was five feet deep, and the earth excavated to make these two lines of trench was thrown out upon the walk, producing an obstruction which extended to the fence. When.the plaintiffs approached this heap of earth on the walk, they turned easterly into the street to get around it, and Mr. Groves went upon the railway track, and his wife, to his left, walked by his side, on the outer and west side of the rail, until she reached the point where the cross-trench approached near to the railway, when she suddenly fell into it and received the injury. This occurred about eleven o’clock at night. It was very dark, and there were no guards placed there, and no lights in that locality to in any manner warn or advise persons passing along there of any interruption or danger further than might be furnished by the earth piled upon the sidewalk. The evidence justified the conclusion of the jury that the plaintiffs wete free from any contributory negligence.

While conceding that the duty is upon the defendant to keep its streets in safe condition for the public use, and that it may be liable for the consequences of its negligence in that respect, it is contended by the defendant’s counsel that the defendant was not chargeable with the results of the action and direction of the executive board, but that its liability was dependent on notice of the dangerous condition which had been thus produced and to which the public travel on the street was exposed, and that until the fact of such notice was found, arising from lapse of time or otherwise, the defendant was not chargeable with negligence or liability.

This proposition and contention are placed upon the ground that the executive board of the city is not the agent of the defendant, but an independent body having its duties, for the manner of performing which the defendant is not responsible to third parties affected by it.

The city charter provides for the election of an executive board to consist of three persons (Laws of 1880, chap. 14, §§ 142, 143), with j>ower to let all contracts to be made by the city pursuant to ordinances, except such as are by law directed to be otherwise made, and that the board shall superintend their execution, and shall have the superintendence and control of all work and improvements ordered by the common council, and have control of the construction, improvement, repair and cleaning of streets, etc., and that they shall be the commissioners of highways of the city. (Id., § 149.) The board shall have control of the water-works of the city and of the construction of all extensions, additions, improvements and repairs of the same, and of furnishing water to citizens and the care and repair of such works. (Id., § 150.) They shall also have the care and control of the fire department of the city (Id., § 151), and may employ assistants (Id., § 152), and may enter upon any street, etc., for the purpose of laying down pipes for the conveyance of water, or constructing, repairing, altering, maintaining or extending any portion of the waterworks, and for such purpose may carry or conduct any pipes or other work over, under, through or across any street in such manner as not to unnecessarily obstruct the travel, etc. (Id., § 157.) The streets and places of extensions and additions of water-pipe shall be, from time to time, recommended by the executive boai’d to the common council, who shall have power to approve or alter the same, and the same shall not be otherwise constructed than as determined by the common council. (Id., §155.) And the lawful expenses of the board and all demands lawfully contacted shall be paid by the common council, etc. (Id., § 148.) The municipal corporation is the city of Rochester. The common council are vested with the legislative and much executive power of the city, and have the management and control of its fiscal and prudential affairs and of all its property. The executive and administrative powers ' and duties are so distributed as to be placed in what may be designated departments, within which all respectively co-operate in conducting the municipal affairs of the city. This is a statutory system of organization to execute the powers and carry on the business of the corporation. The executive board is one of the instrumentalities employed for those purposes. 'Whatever is done by this board, within its legitimate powers, of those things embraced within the corporate powers of the city, is the act of the latter. And the executive board in such case is deemed the agent or representative of the defendant, as distinguished from the character of a public officer as such. (Conrad v. Ithaca, 16 N. Y., 158; Ehrgott v. Mayor, 96 N. Y., 264, 273.) The rule is otherwise in respect to powers and duties óf a political or governmental character which are vested by the statute in officers or departments in a municipal corporation for the public good, and those powers and duties not placed upon it, but upon the officer or department, and for the benefit of the public, as distinguished from that of the corporation. Their relation, then, is so far independent of the corporation that they are deemed public officers, and it is not chargeable with their action or negligence in the performance of the duties vested in them. (Maxmilian v. Mayor, 62 N. Y., 160; Tone v. Mayor, 70 id., 158; Ham v. Mayor, Id., 459; Smith v. Rochester, 76 id., 506; Bigler v. Mayor, 5 Abb. N. C., 51; Bamber v. Rochester, 26 Hun, 587.)

The work of making the trenches in question was solely for the purpose of extending the supply of water, and the lateral trench cut across a portion of the street and into the sidewalk was evidently to lay a pipe to a hydrant, and was legitimately within the power given by the statute. It is insisted that the water-works and their extension are under the control of the executive board, not as agents of the city, but as public officers clothed with power, and that as the lateral, which caused the plaintiff’s injury, was made to carry water to a hydrant to supply water to extinguish fires, they were acting in a public and independent capacity and not in one subordinate to the corporation and its powers ; and further, that the city is not charged because no contract with it had then, in fact, been made to do the work. The work was awarded by the executive board to the person who did the work, but no written contract had yet been made. The water-works system is the property of the city for its purposes and for the extinguishment of fires and for the supply of pure and wholesome water to its citizens. As has been observed this board has the power to let all contracts in pursuance of ordinances of the common council; and the statute provides that when made the contractor shall execute to the city a bond or undertaking, etc., and until that is done no contract shall be binding on the city. (Sec. 168, sub. 6.) The relation of the defendant to this work, as against the plaintiffs, did not require the existence of a contract, binding upon it, with a contractor to do it. The work of cutcing trenches for and laying the water-pipes in the streets of the city, to thus provide the means of supply, we think is within the corporate power of the city. In this instance the executive board, pursuant to an ordinance of the common council, had awarded the contract, and it was under the direction of. the board that this work was done. "We think this work was a corporate act of the city, and that the executive board in causing it to be done represented the defendant and acted as its agents. The executive board were also commissioners of highways of the city, and !u that capacity represented it in its corporate powder and duty of keeping the streets in such condition and repair as to give safety-to the public travel in them. And in connection with the work for the other purpose, was the accompanying duty of the board to not unnecessarily impair or render dangerous the proper use of the street by the traveler. It is the performance of the latter duty that is in question in this case. It follows that the defendant was chargeable with the negligence of the executive board, aud that if such negligence caused the injury, there was no question of notice to the defendant for the consideration of the jury. (Sewell v. Cohoes, 75 N. Y., 45; Brusso v. Buffalo, 90 id., 679; Ehrgott v. Mayor, 96 id., 264, 273; Russell v. Town of Columbia, 74 Mo., 480; S. C., 41 Am. R., 325 )

That the plaintiff’s injury was occasioned by the work of excavation so made in the street and walk, and leaving it unguarded and without light to guide the way of escape from danger, is wrell established by the evidence, having in view the darkness at the time of the accident. The question whether the executive board was advised of the situation was left to the jury, although their direction caused the work to be done, and it was in fact done under their supervision, through the person employed by them.

The defendant’s counsel contends that the court erroneously charged the jury, as matter of law, that the city was guilty of negligence and liable. The court charged the jury in that respect that “where an excavation is made under the direction of the city and is left unguarded, that is sufficient to render it liable for resulting injuries. Nevertheless, persons passing along must exercise due care. * * * But if a person with ordinary prudence and caution passing along the street without any notice of the obstruction * * * exercises fair prudence to avoid it, and is injured, the city must respond. This place, it is shown, was not lighted; it was not guarded; there were no lamps in a long distance. * * * That night was very dark. * * * If you shall say that the place was not properly guarded and that this lady exercised proper care for her own protection, you will come to the subject of damages.” The charge as made, as a whole, does not fairly support the assumed basis of the contention. The omission of the defendant in some manner to guard an excavation made by its direction in a street of the city would be negligence, if in consequence a person traveling there and using due caution was injured by it, and liability would result for the injury so received. The remark of the court that it was not guarded was made in reference to the fact that there was no light to expose the situation, which is not questioned, and finally it was, in effect, left to the jury to say whether the place was properly guarded. The only fact for the jury in that respect was whether, under the circumstances, the obstruction on the walk, and the situation there as they appeared when approached by the plaintiff in the darkness of the night, were such as to advise a person using due caution, that it was not prudent to go around it as she attempted to do. There was no request to submit any question in that respect to the jury. And it is not apparent, in view of the evidence, that such request and charge would have been of any value to the defense. That question was substantially embraced in the charge in respect to the required care and caution on the part of the plaintiff to support the action. We think there was no error in the portions of the charge to which attention is called by the exceptions taken. The question of negligence is usually one of fact for the jury, as is also the further question (if negligence of defendant is found) whether the injuries were caused by it.

We observe no disregard of that rule by the trial court. If anything further for the consideration of the jury was desired, it could very properly have been 'suggested by request to charge. We cannot say that the verdict was excessive in amount. The plaintiff,' at the time of the injury, was twenty-eight years of age; and the evidence tended to prove that before and up to that time she had been remarkably healthy and active. Her injuries were severe, and her suffering has been very great. She still suffers from the effect of them, and medical opinion is that she may never fully recover, and that they may materially shorten her life.

None of the exceptions seem to have been well taken, and no substantial reason appears for a new trial.

The judgment and order should be affirmed.

Smith, P. J., and Barker, J., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    URI C. LYNDE, Plaintiff, v. CORYDON C. JOHNSON, Defendant.

      Blander— what words are not actionable-per se — when their meaning must be left to the jury — when a charge of malpractice in the treatment of a particular case is actionable per se — words not set out in the complaint, although proven, cannot be submitted to the jury.

    This action was brought to recover damages for slanderous words spoken by the defendant with reference to an amputation performed by the plaintiff, who was a physician and surgeon. The complaint alleged that among the slanderous words uttered by the defendant were the following: “That the plaintiff did it (cut off the arm) to get-his name up and get a big fee.” Upon the trial the court was requested, and declined, to charge that if the defendant said of and concerning the plaintiff that he amputated the arm simply for the purpose of getting his name up, or simply for the fee he expected to get, the words were actionable per se.

      Held, that its refusal to so charge was proper, as the evidence did not show that the defendant had used the word “simply.”

      Semble, that the court could have properly refused to charge that the words which were alleged, and proved to have been used, were actionable per se.

    The court also declined to charge that if the jury found that the defendant said that the plaintiff acted hastily in amputating the arm, and did not make the amputation on his own judgment, or that he took the word of the physician with whom he consulted, and did not himself sufficiently examine the arm, such words were actionable per se.

      Held, no error; that these words did not in terms so relate to the general professional character, habits or skill of the plaintiff as to entitle them to the construction asked for.

      Tlie court refused to charge that if the jury found that the defendant said that “ it was a perfect piece of imposition, and that the plaintiff did it to get his name up,” such words were actionable per se.

      Held, that the court properly refused so to charge, for the reason that important words in the request were not set out in the complaint.
    That the court also properly refused to charge that a statement of the defendant that the plaintiff had better have cut off the boy’s left arm, then he would have had his right arm, was actionable per se.

    When words are spoken concerning a physician in reference to his treatment of a particular case, they may just as effectually injure his professional character and standing as when spoken of him generally in that respect, and when their natural and plain import and effect are such that they impute to him general professional ignorance or want of skill, the fact that they are spoken in reference to the treatment of a particular case does not render them less actionable, as matter of law, than if the words had been uttered in respect to the general professional character of the physician.
    Motion by the plaintiff for a new trial, on exceptions taken at Erie Circuit and ordered heard at General Term, in the first instance.
    The action was for slander, for words alleged to have been spoken by the defendant of the plaintiff imputing to the latter a want of knowledge or skill in his profession.
    The plaintiff was a physician and surgeon, and was called upon as such to treat a young man whose right arm had been seriously injured while engaged in the act of coupling cars upon a railroad, and after consultation with two other members of the medical profession proceeded to and did amputate the injured arm above the elbow. The complaint contains nine counts, and alleges in various forms words as spoken by the defendant of the plaintiff concerning his act of amputation. The answer puts in issue the allegations of the complaint substantial to the right of recovery, and further alleges that the bones of the arm were not broken, and that the injury did not require amputation. There was evidence tending to prove that the words used by the defendant were that “ it would have been better to have taken off the other arm, then he would have had the right arm to use;” that “the arm should not have been cut off; ” that “ it was a perfect piece of malpractice;” that “it was a bad piece of malpractice;” that' “it was the biggest piece of malpractice he ever knew or heard of; the circulation was good, there were no bones broken; ” that the plaintiff “ did it to get. Ills name up and get a big fee; ” that the plaintiff “ cut off the arm and got his name up and got a big .fee;” that “the plaintiff acted hastily.” And that these words were spoken by the defendant in conversations with others about the case before mentioned and concerning the treatment of it by the plaintiff.
    The verdict was for the defendant.

      Charles W. Goodyear, for the plaintiff.

      Norris Morey, for the defendant.
   Bradley, J.:

No special damages were shown. The right of the plaintiff to recover depended upon the conclusion that the words complained of were actionable per se. The proposition is well settled that words falsely spoken of a physician, imputing to him general professional ignorance or want of skill or integrity in, and having relation to, his profession, are slanderous and will support an action. And the same rule applies to those engaged in other professions, trades, business or employment. (Folkard’s Starkie on Sl. and Lib., 110; Southee v. Denny, 1 Exch., 196; Foot v. Brown, 8 Johns., 64; Fowler v. Bowen, 30 N. Y., 20.)

The words in question had application to the plaintiff in reference to a particular case, and did not in general terms charge him with misconduct or want of skill in his profession, and for that reason the trial court held and charged the jury that, in view of the circumstances under which the words were spoken, it could not, as matter of law, be said that they were slanderous per se, but that their import and the intent with which they were uttered were questions for the jury to determine, as the imputation which might be conveyed by them was a matter of some doubt, and that if they imputed to the plaintiff ignorance or want of skill or knowledge in his profession, a prima facie case was made out, but if the jury found that the words were not entitled to such import, then the plaintiff was not entitled to recover, because no special damages appeared. It is unnecessary to inquire whether the legal proposition stated by the court in the charge was correctly applied to the evidence in this case, because no exception was taken to the charge as made. If the words were susceptible of two interpretations, or if the import of them was doubtful, so that they might or might not be construed as slanderous per se, the question of their meaning and import was for the jury. (Sanderson v. Caldwell, 45 N. Y., 398; Hayes v. Ball, 72 id., 418.)

But the fact that words are spoken concerning or relate to a single casé or transaction of a person in his profession does not necessarily deny to them interpretation as matter of law which gives to them the character and effect of slander per se. They, in such case, are entitled to have such effect given them by the court when they necessarily import gross ignorance, want of skill or integrity in his calling or profession, and that is so when such is their plain and natural import. (Dole v. Van Rensselaer, 1 Johns. Cas., 330; Secor v. Harris, 18 Barb., 425; Carroll v. White, 33 id., 615; Sumner v. Utley, 7 Conn., 257; Camp v. Martin, 23 id., 86.)

The only questions presented here for consideration arise upon exceptions, and they were taken to refusals of the court to charge as requested. The court was requested, and declined to charge, that if the defendant said, of and concerning the plaintiff, that “he amputated the arm simply for the purpose of getting his name up (2) that he did it simply for the fee he expected to get,” the words were actionable per se, and exceptions were taken to refusals to charge those propositions severally and together as one.

The requests assume to contain words uttered by the defendant. It does not appear by the evidence that the word simply or its equivalent was so used by him. The construction of the phrase in such manner as to exclude any other consideration in the act of amputation than that of the purpose to get his name up, or to get a fee, might have a material bearing on the question of the construction and meaning of the words. And in such case it would be difficult to construe the words otherwise than an imputation of recklessness or professional conduct arising out of ignorance, or otherwise relating to his professional character in such manner as to require the conclusion that the words were actionable as matter of law. It may be that the words in that respect, which the evidence tends to prove were spoken by the defendant, would have justified the jury in finding that they imputed such purpose only, bu.t we think they did not necessarily in their import exclude from the treatment a legitimate object, although there may have been united with it the purpose of the plaintiff to get his name up and to get a fee. In that view the use of the word “ simply ” in the request to charge was a material modification of the effect of the words as they appear by the evidence to have been spoken by the defendant. If the conclusion of the request had, by its terms, been made dependent upon the finding of the jury that the words imputed that he made the amputation simply or only for the purposes in the request mentioned, it would have been a proposition quite different from the one presented and into which the latter cannot reasonably be construed. The exception to the refusal to charge that if the defendant said the plaintiff amputated the arm for the sake of getting his name up,” those words were actionable fer se, was not well taken, because the words used did not necessarily import anything generally against the professional character or skill of the plaintiff, or exclude the idea that he was not also governed by a proper motive, although the jury may have, upon the evidence, been permitted to find that the words imported and were understood to impute to him such ignorance or disregard of professional duty as to render them of themselves actionable.

The court was also requested, and declined to charge that if the jury found the defendant said the plaintiff acted hastily in amputating the arm, and did not make it on his own judgment, or that he took Dr. Babcock’s word, and did not examine the' arm sufficiently himself before he made the amputation, such words were slanderous fer se, and took exceptions severally to the refusals to charge those propositions. Those words did not in terms so relate to the general professional character, habits or skill of the plaintiff as to entitle them to the construction asked for as matter of law. They were susceptible of construction and import that would charge him merely with want of the requisite care and caution in ascertaining the remedy required in that particular case which may have resulted in erroneous treatment. This would not necessarily imply such gross ignorance, misconduct or want of skill of the plaintiff as a surgeon, as to render the words actionable without special damages. Therefore, the import of the words and the understanding which the speaking of them would convey to the hearer were for the jury. And the same may be said of the exception to the refusal of the court to charge that if the jury should find that the defendant said the plaintiff had better have cut off the boy’s left arm, then he would have had his right arm, the words were actionable per se. Whether this statement was an imputation that the plaintiff’s conduct was grossly reckless or resulted from ignorance, want of skill or fitness for the duties of his profession on the one hand, or that his treatment arose .from a mistake merely in the diagnosis of the case on the other hand, was a question for the jury and not for the court; and as they should find in that respe'ct, the speaking of the words would or would not produce the legal presumption of damages.

' When words are spoken concerning a physician in reference to his treatment of a particular case, they may just as effectually injure his professional character and standing as when spoken of him generally in that respect, and when their natural and plain import and effect are such that they impute to him general professional ignorance or want of skill, the fact that they are spoken in reference to the treatment of a particular case, does not render them less actionable, as matter of law, than if the words had been uttered in respect to the general professional character of the physician. But in view of the fact that competent and eminent physicians and surgeons may, without fault, mistake the symptoms and treatment of a particular case, words spoken of a physician in reference to it only, may by that fact be so qualified that unless they have' an import and meaning which in effect reaches beyond the particular case and its treatment, and goes to affect the doctor’s professional character, learning or skill, the law implies no damages as the consequences, and special damages are necessary to support the action. (See cases before cited.)

The only other exception was to the refusal of the court to charge that if the jury find that the defendant said of and concerning the plaintiff, and the amputation referred to, “ that it was a,perfect piece of imposition, and that the plaintiff did it to get his name up,” such words were actionable jper se.

If it be assumed that these words spoken of the plaintiff were slanderous and would support an action, the difficulty in this case is that the important words in the request are not set out in the complaint. We fail to find alleged, as any part of the several causes of action, the words “ that it was a perfect piece of imposition,” or any in substance like them. And although no objection was taken to them, and no motion made to strike them out, they cannot be deemed as within the issues, nor can the complaint be amended or deemed so here for the purpose of the predication of error. And because they were not so counted upon in the complaint, the exception to the refusal to charge was not well taken. (Fox v. Vanderbeck, 5 Cow., 513; Olmsted v. Miller, 1 Wend., 506.)

The words charging the plaintiff with malpractice, may have been as effectual an imputation to support an action as those just mentioned, but the allegation and proof of the speaking of the words imputing malpractice, cannot be used to support the exception to .the refusal to charge as so requested.

We are not by any exception required to determine the legal import of the words charging the plaintiff with malpractice in speaking of the treatment of the case, and we do not hold tbat those •words were not actionable per se.

This case comes here on exceptions only, and none of them seem -to be well taken.

The motion for a new trial should be denied and judgment ordered •on the verdict.

SMITH, P. J., and Haight, J., concurred; Barrer, J., not sitting.

Motion for new trial denied and judgment ordered for the defendant on the verdict.


text:
    WILLIAM KEELER, Respondent, v. MARIA DENNIS, Appelant.

      Action of ejectment — power of the court to set aside a second judgment — Code of dril Procedure, sec. 1626 — the discretion exercised by the court below is renewable on appeal.

    •Under tlie authority conferred by section 1525 of the C®de of Civil Procedure, the court, upon an application made within two years by a party against whom a second final judgment has been rendered in an action for the recovery of real property, may make an order vacating the second judgment and granting .a new trial, upon the payment of all costs and all damages, other than for rents and profits, if it is satisfied that justice will be thereby promoted, and the rights of the parties will be more satisfactorily ascertained and established, even though no error, which would support an appeal, has been committed upon the trial, and though the evidence was sufficient to support the verdiet of the jury, and there is no claim, on the part of the applicant, of surprise or newly discovered evidence.
    The discretion to be exercised by the court is legal as well as judicial, and must have some reason for its support.
    The question as to whether or not there is any substantial ground for the exercise of the discretion is subject to review by the appellate court, upon an appeal from the order made by the court below.
    Appeal by the defendant from an order of the Monroe Special Term, vacating a judgment in favor of the defendant and granting a new trial on payment of costs pursuant to the provisions of the Code of Civil Procedure, section 1525.

      A. P. Smith, for the appellant.

      H. V. Howland, for the respondent.
   Bradley, J.:

The action is ejectment. There have been two trials. Each resulted in a verdict for the defendant. After the first trial the plaintiff took a second one under the statute. And the order in question was made upon plaintiff’s motion for a third trial. The statute provides that in such an action the court may make an ffrder vacating the second judgment and granting a new trial * * * if it is satisfied that justice will thereby be promoted and the rights of the parties more satisfactorily ascertained and established.” (Code of Civ. Pro., § 1525.) And the prior statute was substantially the same. (2 B. S., 309, § 37.) By this statute relief by way of a new trial may be given when there is no error to support a review by appeal or otherwise, but the reason for it must be found in the judgment of the court that the statutory requirements exist which permit it. The grounds upon which the motion was made were to the effect that the facts upon which the defense and the alleged right of the defendant to relief depended, were not satisfactorily’' established by the evidence, and that there was a preponderance of evidence in support of the plaintiff’s right to recover.

The action is brought to recover the possession of a farm, in Cayuga county’, of the estimated value of about $10,000, to which tlie plaintiff claims title. And it appears that the legal title, supported by the deeds of conveyance, is in him.

The defendant alleges an oral agreement for the sale of the premises to her, and occupation, improvements, and such performance upon the faith of it on her part as to support an equitable title in her with the. right to the possessson and a conveyance from the plaintiff by way of specific performance. Yery considerable evidence was evidently given on the trial, as appears by the abstract of it appearing in papers before us. It is not claimed on the part of the plaintiff that he wa,s surprised by any evidence, which lie was not then prepared to meet and can supply upon another trial, nor is the application founded on any assertion of newly discovered evidence. It must be assumed here that the evidence was sufficient to present for the jury a question of fact, upon which the determination of the right of the parties depended and sufficient to support their verdict.

The question before the Special Term was, therefore, mainly one of propriety of the verdict in view of the evidence and of the justice of-the result given by it. While the court should not unduly invade the province of the jury, there may be cases where, like this, the application rests wholly in the discretion of the court, that its judgment may not be satisfied that the result fairly represents the rights of the parties, or that there is so much doubt as to justify the opportunity for another and third trial, although no reasons, founded in additional or newly developed circumstances of importance, are made to appear. The theory of the right given to a party in such case to make application to the discretion of the court and that of the court to grant it, is that without the support of error, the case may be sent to another jury if the judgment of the court is that justice will be promoted and the rights of the parties more satisfactorily ascertained and established. Those are the only qualifications to the absolute power given to the court to grant the new trial, and they rest in no arbitrarily defined rule for the government of the discretion or its exercise. And although the statute of this State has provided this practice for more than fifty years, the courts have not sought to give to it a narrow or defined construction, governing or limiting the exercise of the discretion of the court. The provisions of the statute alone furnish the guide to its interpretation.

In Harris v. Waite (54 How., 113) the judgment of the court was that there was no such preponderance of evidence in favor of the moving party as to lead the court to say that justice would be promoted by a conclusion uponjthe evidence adverse to that of the jury.

In Wright v. Milbank (9 Bosw., 672) it was held that a new trial would not be granted to allow the defeated party to withdraw his admissions, voluntarily made upon the trial, and to get relief from the consequences of the assumption, in like manner adopted for the purposes of the trial. And other considerations were there also expressed in support of the reason for denial of the motion.

In Phyfe v. Masterson (13 J. & S., 338) the questions upon the trial were evidently those of law only, and it was held that a new trial should not be allowed, because no grounds for it were stated in the motion papers; that reasons urged upon the application were embraced within the rulings at the trial and there correctly disposed of; and that a new trial would not be granted to enable a party to avail himself of a waived objection.

It may be observed that the statute did not have the effect to extend the right to continue litigation by actions of ejectment, but to restrict the rights of parties in that respect. Before the Revised Statutes a judgment in ejectment was no bar to another action between the same parties to recover the possession of the same premises, and the only means of staying litigation in repeated actions of ejectment was by relief in chancery. And it was only by force of the statute that a judgment in ejectment was rendered conclusive as to the title established in the action. (2 R. S., 309, § 36; Jackson v. Dieffendorf, 3 Johns., 269; Bates v. Stearns, 23 Wend., 482.)

Those sections (36 and 37 of title 1, chap. 5, part 3 of. R. S.)„ were adopted to prevent the endless litigation which before then, might be carried on by actions of ejectment. (Revisers’ Notes, 3 R. S. [2d ed.], 709.)

This restriction upon the common-law remedy of ejectment seems to be wise. The discretion required by the statute is legal as well as judicial, and must have some reason for its support. And it is subject to review in the same court; upon which the inquiry arises, whether there is any substantial ground for the exercise of the discretion which produces the order appealed from.

The motion, in this case, was made upon an affidavit of the plaintiff, the pleadings and the trial judge’s minutes, and was heard at Special Term held by. him. He was peculiarly prepared to con. sider the application, and the whole case, as presented at the trial, was before him. And he has put his conclusion, as appears by his opinion, upon the ground that, in his judgment, the verdict was against the preponderance of the evidence and was not satisfactory. While, as a rule, it may be a somewhat difficult proposition upon which to so exercise the judicial discretion as to reach a conclusion adverse to that of the jury, we are unable to say that it has, in this instance, been improperly exercised. The learned justice, who saw the witnesses on .the stand as well as heard them testify, had certainly a better opportunity of estimating the quantum and effect of the evidence furnished by their testimony than is available to a court without those means. And without expressing any opinion here in that respect, an examination of the brief minutes of the evidence, as taken by the trial justice and presented in the appeal book, seems to have permitted the conclusion reached by the Special Term, and that in doing so there was no abuse of the discretion of the court. But, we think, no costs of this appeal should be given.

The order should be affirmed.

Smith, P. J., and BaeKee, J., concurred.

Order affirmed, without costs.


author: Smith, P. J.:

text:
    REUBEN H. FARNHAM, as Supervisor of the Town of Attica, Appellant, v. CHARLES H. BENEDICT, Respondent.

      Town bonds — one who receives and sells the bonds for the railroad, owes no duty to the town in disposing of them.

    Bonds of the town of Attica were delivered by the commissioners thereof, as authorized by section 5 of chapter 907 of 1869, to a railroad company in exchange for its stock. The defendant received them as president of the company, for its use, sold them at par for cash, and accounted to the company for tlie money received. The defendant was, at that time, the supervisor of the town. This action was brought against him for having sold the bonds, knowing them to be invalid, to bona fide purchasers, thereby rendering the town liable to pay them.

      Held, that the action could not he maintained.
    Appeal from a judgment in favor of tbe defendant, entered on tbe report of a referee.

      L. W. Thayer, for tbe appellant.

      W. F. Coswell, for tbe respondent.
   Smith, P. J.:

Tbe gravamen of this action, as stated in the brief submitted to us by tbe counsel for tbe plaintiff, is that the defendant, having in bis possession certain instruments purporting to be bonds of tbe town of Attica, issued in aid of tbe construction of a certain railroad, but which were, in fact, invalid by reason of certain defects known to tbe defendant, sold tbe same to Iona fide purchasers, at par, and thereby rendered tbe town liable to pay them.

It is a sufficient answer to this claim, as it seems to us, that tbe defendant owed no duty to tbe town, in respect to tbe disposition of tbe bonds. Tbe bonds were delivered to tbe railroad company by the commissioners of tbe town, in exchange for the stock of tbe company. Tbe commissioners bad authority to deliver them for that purpose. (Laws 1869, chap. 907, §5.) Tbe defendant received them as tbe president of tbe company for its use; be sold them for tbe company, at par, for cash, and, as the referee found, be accounted to tbe company therefor. It is true that, at tbe time of tbe sale of tbe bonds, tbe defendant was tbe supervisor of tbe town, but be bad not, and did not assume to have, any control over tbe bonds by virtue of that office. The only authority be bad over tbe bonds, and tbe only duty be was under in respect to them, was as tbe officer and agent of tbe company.

Assuming that the bonds, while in tbe hands of tbe commissioners, were void for any reason, or that tbe stock for which tbe commissioners were about to exchange them was worthless, doubtless tbe commissioners might have been restrained from disposing of them (Laws 1872, chap. 161; Ayers v. Lawrence, 59 N. Y., 192), and even after the exchange, if the stock was worthless, so that the bonds were without consideration, the company, and the defendant, as its officer and agent, might have been restrained from negotiating them, but no such remedy having been resorted to, it is difficult to see upon what ground the defendant is responsible to the town for his agency in selling the bonds, after they were delivered to the company by the commissioners.

For these reasons, as well as those stated in the opinion of the learned referee, we think the judgment should be affirmed.

BARKER and Bradley, JJ., concurred; Haight, J., not sitting.

Judgment affirmed.


text:
    THE CITIZENS’ NATIONAL BANK OF HORNELLSVILLE, Appellant, v. ALBERT H. VORHIS, Respondent.

      Order of arrest — when a third order will not he set aside as procured for the purpose of vexing and harassing the defendant.

    Appeal from an order vacating an order of arrest, issued in the last of three successive actions brought by the plaintiff against the defendant, for the same cause, in each of which the defendant had been arrested. The defendant was also arrested upon a criminal warrant, based upon a complaint made in behalf of the plaintiff, charging the defendant with the same fraudulent acts which were alleged as the cause of action in each of the civil suits. Owing to the failure of any one to appear on the part of the prosecution, the defendant and his bail were discharged. Upon the hearing of a motion to vacate the third order of arrest as vexatious, it was shown that the first action was discontinued upon the payment of a part of plaintiff’s claim, and with the express understanding that “ there should be no legal or moral obligation upon the bank not to arrest Vorhis again at any time; ” and that both of the first two actions were discontinued upon the earnest solicitation of the defendant, and because of his promising to at once raise money to pay the plaintiff’s claim, which agreement he failed to perform.

      Reid, that the court erred in vacating the order, as the facts failed to show that the successive arrests were resorted to for the purpose of vexing and harassing the defendant.
    Appeal from an order of a Monroe County Special Term, vacating an order of arrest.

      J. H. & C. W. Stevens, for tbe appellant.

      Benton & Paine, for tbe respondent.
   Smith, P. J.:

Tbe order of arrest, vacated by tbe order appealed from, was issued in tbe last of tliree successive actions brought by tbe plaintiff against tbe defendant, for the same cause, and in each of which tbe defendant was arrested. In addition, tbe, defendant was arrested upon a criminal warrant based upon a complaint made in behalf of tbe plaintiff charging tbe defendant with tbe same fraudulent acts which were alleged as tbe cause of action in each of tbe civil suits. Tbe defendant gave bail for bis appearance at tbe criminal court, and be having appeared accordingly, and there having been no appearance on tbe part of tbe prosecution, be and bis bail were discharged. Tbe first two civil suits were discontinued at tbe request of tbe defendant.

Tbe defendant contends that a third arrest for tbe same cause is vexatious, and that whether intentionally vexatious or not,’the law will not permit il. In general, there cannot be even a second arrest for tbe same cause, unless it is shown not to be vexatious. The question whether or not it is vexatious is to be determined by tbe circumstances of each case. There are many reported cases in which a second arrest lias been held to be regular. Where A. having been arrested at tbe suit of B., gave him a draft for part of tbe demand and agreed to settle tbe remainder in a few days; after which, tbe draft being dishonored. B. sued out a new writ against A. and arrested him again on tbe same affidavit, this was held to be regular. (Puckford v. Maxwell, 6 T. R., 52; see, also, Bates v. Barry, 2 Wils., 381; People v. Tweed, 5 Hun, 382,-392; S. C., affd., 63 N. Y., 202; Meucci Raudnitz, 20 Hun, 343; Ewart v. Schwartz, 48 N. Y. Supr. Ct. R., 390.) In all these cases, tbe sole inquiry was whether tbe secoud arrest was vexatious., and if not, it was upheld. No reason occurs to us why even a third arrest should not be permitted, if it clearly appears not to be resorted to for tlie purpose of vexing the defendant.

In the present case, it appears that the first suit was discontinued at the earnest solicitation of the defendant, upon his paying $2,150 towards the plaintiff’s claim and costs, and promising to pay the rest, and, as the plaintiff’s attorney testifies without contradiction, upon the express understanding that “ there should be no legal or moral obligation upon the bank not to arrest Yorhis again at any time.”

The affidavits on the part of the plaintiff also state, and in this respect they do not appear to be controverted, that the defendant not only made no further pajunent, but declared that he would not pay more than $2,000 for the notes (the balance due on them being over $9,000), and that declaration being regarded as evidence that he did not intend to pay, the second suit was commenced and defendant was again arrested. While in charge of the sheriff, he admitted that he had broken his promise, and urged that the action be discontinued and he released, saying that he had made arrangements with a relative in the west, from whom he could get the money to pay with, and that if the action was discontinued, he would at once proceed to raise the money and pay the claim. As the result of that promise and solicitation, the action was discontinued. The stipulation for discontinuance was dated the 19th of November, 1884. On the 10th of April, 1885, nothing more having been paid by the defendant, this action was commenced, and the defendant was again arrested.

The opposing affidavits also state that the failure to appear in the criminal case was owing to the fact that an arrangement made with the district attorney to notify the plaintiff’s cashier when the case would be reached, was not carried out. And at the next session of the court the case was presented to the grand jury, and the defendant was indicted, and he gave bail.

It is apparent from these allegations, which, so far as we have discovered, are substantially uncontradicted, that the discontinuance of the first two actions, and the arrests therein obtained, were acts of lenity on the part of the plaintiff, granted at the solicitation of the defendant, and to our mind, the result of the evidence is, that the successive arrests, so far from being employed to vex and harass the defendant, were resorted to in good faith for the sole purpose of enforcing the plaintiff’s claim.

Some of the moving affidavits aver that the payment of $2,150 was in full settlement of the plaintiff’s claim. The statement is improbable, and the opposing affidavits show satisfactorily that it is not correct.

The point is made that the first suit was not discontinued when the second was commenced. It is true the formal order of discontinuance had not then been entered, but the papers justify the inference that the agreement to discontinue was in fact made, and the defendant was released from the arrest in the first action before the second was begun.

The respondent’s counsel refers to the fact that on discontinuing the second suit, the plaintiff took from the defendant a release of all claims for damages by reason of the two arrests, and urges this as evidence that the motive of the plaintiff’s officers in making the arrests was improper. Any inference of that nature seems to be effectually repelled by the statement in the affidavit of Mr. Orcutt, the plaintiff’s attorney, that he took the release of his own motion, without the knowledge of the plaintiff or its officers.

Our conclusion is that the order appealed from should be reversed, and the motion to vacate the order of arrest denied, with ten dollars costs and disbursements.

All concur.

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


author: Smith, P. J. :

text:
    In the Matter of NORMAN B. BROWN, an Imprisoned Debtor.

      Discharge of an insolvent from, imprisonment— Oode of Uivil Procedure, sees. 3204, 2208 — no limitation as to time beyond which the fraudulent transfers of a debtor cannot be proved.

    Upon an application by an insolvent debtor to be discharged from imprisonment the court refused to receive evidence offered by an opposing judgment creditor, relating to the dealings of the debtor and as to the disposition which he had made of his property prior to the time of the entry of the judgment.

      Held, that it erred in so doing.
    Section 2204 of the Code of Civil Procedure requires the affidavit, to be annexed to the petition, to state, among other things, that he has not “ at any time or in any manner whatsoever disposed of ” his property; if it be shown that the creditor was injured or defrauded by the transaction alleged to be fraudulent, proof thereof may be given whether such transaction preceeded or followed the recovery of the judgment by such creditor or even the inception of the cause of action on which such judgment was obtained.

      Appeal by Persons S. Bernard, a creditor of a judgment-debtor, from an order made by the County Court of Cliautauqua county, discharging the said debtor from imprisonment.

      W. Woodbury,■ for the creditor, appellant.

      liecord da Hooker, for the debtor, respondent.
   Smith, P. J. :

This is a proceeding under section 2201 of the Code of Civil Procedure, commenced by the petition of the debtor above named to be discharged from imprisonment. He was imprisoned on the 22d of November, 1884, under an execution issued upon a judgment recovered against him and others, by the appellant, on the 5th of March, 1883, for the sum of seventy-two dollars and seventy seven cents.

The petition of the debtor and the schedules and affidavit annexed thereto were apparently regular. That being the ease, the court was required to direct an assignment and grant a discharge, as provided by the statute, unless the opposing creditor satisfied the court that the proceedings on the part of the petitioner were not just and fair. (Code, § 2210.) The appellant assumed the burden of proof upon that question, and gave evidence of certain transactions of the debtor respecting his property, from which opposing inferences might have been drawn, as to whether the debtor intended, by such transactions, to so dispose of his property as to defraud his creditors. Much of the evidence related to transactions occurring prior to the date of the judgment upon which the execution was issued, under which the debtor was imprisoned.

It appears from the appeal book that the County Court declined to consider the evidence relating to “ the dealings and the disposition of the property ” by the judgment debtor prior to the entry of such judgment. In that ruling, we think, the court erred. The statute requires that the affidavit to be annexed by the debtor to his petition shall state, among other things, that he has not, at any time or in any manner whatsoever, disposed of or made over any part of his property, etc., and the affidavit, in this case, complied with that requirement. Here is no limitation as to time. Undoubtedly, in order to prevent a discharge, it is necessary that the transaction alleged to be fraudulent should have injured or defrauded the creditor contesting the discharge (Matter of Brady, 69 N. Y., 215); but if that be the case, we conceive it is immaterial whether such transaction preceded or followed the recovery of judgment by such creditor, or even the inception of the cause of action on which such judgment was obtained. A transfer of property may be made under such circumstances as to be fraudulent against subsequent creditors, as well as those existing, at the time. (Carpenter v. Roe, 10 N. Y., 227; Savage v. Murphy, 34. id., 508; Case v. Phelps, 39 id., 164; Shand v. Hanley, 71 id., 319.)

For the error above pointed out, the order should be reversed and the proceedings remitted to the County Court of Chautauqua county for a rehearing, with costs of this appeal to abide the event.

Haight and Bradley, JJ., concurred; Barker, J., not sitting.

Order reversed and proceedings remitted to the Chautauqua County Court for a rehearing, with costs of this appeal to abide the event.


text:
    ROBERT BROWN and THOMAS O’MEARA, as Sheriff of Livingston County, Appellants, v. JAMES J. GUTHRIE, Respondent.

      Attachment — when it cannot he attacked in a collateral proceeding — mortgage of property to secure payment of a part of the mortgagors debts and in trust to pay other debts — void, when a general assignment containing the same provisions would he.

    This action was brought to recover damages for the conversion of personal property after the same had been levied upon by the plaintiff, a sheriff, under an attachment issued in an action against one Morrison. The defendant after the levy sold the property under a chattel mortgage given to him by Morrison previous to such levy. The defendant attacked the attachment on the ground of the insufficiency of the affidavits on which it was granted.

      Held, that as the court Jiad obtained jurisdiction over Morrison, and he had not moved to set aside the attachment, the defendant in this action could not contest its validity.
    October 20,1883, the defendant and Morrison, who was then insolvent, entered into a written agreement which recited that Morrison was indebted to the defendant in the sum of $98.). 79, and also to other persons in a large amount; that he was the owner of unincumbered personal property of the value of at least $2,500, and that he desired to obtain from the defendant an additional loan of $1,200. It then provided that Morrison should execute and deliver to the defendant his notes to the amount of $2,400, and secure their payment by a chattel mortgage upon all the goods and chattels then owned by him, and that the defendant should cancel the notes of Morrison then held by him, advance to him $600 within twenty days, and assume and pay such notes and accounts then owing by Morrison to other parties, as Morrison should thereafter direct, to the amount of $619.21.
    It was further agreed that Morrison, as the agent of the defendant, should be allowed to sell the said goods and chattels at public vendue, at a credit of not to exoeed one year, at such time before the first of the next April as should suit the convenience of Morrison, and that the defendant should personally receive and receipt for all cash payments and notes taken at the sale and retain the same to the amount of the $2,400 notes and pay over any surplus that might remain to Morrison; the defendant being allowed $200 for services to be rendered by him in the premises. The chattel mortgage, which made no reference to the agreement, was filed on November 3, 1883, but the agreement was not, and the plaintiff had no notice of it when the levy was made on November 20, 1883.
    At the time of the execution of the agreement and mortgage Morrison was indebted to the plaintiff for the rent of a farm, to recover which the action was brought in which the attachment was issued.

      Held, tiiat the agreement and mortgage, when read together, showed an intent to hinder, delay and defraud the creditors of Morrison, which rendered them void That as Morrison was at the time insolvent, and as the property was mortgaged not only for the payment of the debt due to the defendant, but also for the debts due to others of his creditors, it was to be treated as a general assignment, and that as such it was void by reason of the following provisions contained in the agreement, viz.:
    (1.) The provision authorizing the debtor to designate such of his creditors as should be paid by the mortgagee, thus enabling the debtor to create preferences subsequently to the transfor of the property.
    (2.) The provision securing to Morrison the surplus which would remain after paying the debts due to the defendant, and the creditors to be designated by Morrison, without making any provision for his other creditors.
    (3.) The provision authorizing the mortgagor to sell the mortgaged property at public auction, at such time before the first of April then next as would suit his convenience, as it gave to the mortgagor, by implication, the right to the possession of the property until such time, within the limit prescribed, as he should see fit to sell the same.
    Appeal from a judgment in favor of tbe defendant, entered on tbe report of a referee.

      McNaughton & Olmstead, for tbe appellants.

      Abbott & Abbott, for the respondent.
   Smith, P. J.:

This action is brought, by leave of the court, under section 677 of the Code of Civil Procedure, to recover damages for the conversion of personal property alleged to have been levied upon by the sheriff, plaintiff, by virtue of a warrant of attachment in favor of his co-plaintiff herein, against one Morrison. After the levy, the defendant took the property and sold the same by virtue of a chattel mortgage executed to him by Morrison previous to the levy. The questions raised by this appeal relate to the validity of the attachment and of the chattel mortgage.

The defendant attacks the attachment on the ground of the alleged insufficiency of the affidavits on which it was granted. That he cannot do collaterally. Jurisdiction of Morrison was obtained in the action against him by the personal service of a summons upon him, and he not having moved to set aside the attachment, it was valid as against him. The referee, therefore, properly held the attachment valid, for the purposes of this action. (Carr v. Van Hoesen, 26 Hun, 316, and cases there cited by Learned, P. J.)

The question of the validity of the chattel mortgage is more serious. That instrument was executed in' the following circumstances. On the 20th of October, 1883, the defendant and Morrison entered into a written agreement, by which, after reciting that Morrison was indebted to Guthrie in the sum of $980.79, upon certain promissory notes therein described, and was also indebted to other persons in a large amount, and that he was the owner of certain personal property which he affirmed to be worth at least $2,500 and to be unincumbered, and that he was desirous of obtaining from Guthrie an additional loan of $1,200 or thereabouts, it was stipulated and agreed that in consideration that Morrison would execute and deliver to Guthrie his notes to the amount of $2,400, and secure the payment thereof by a chattel mortgage executed by him upon all the goods and chattels then owned by him, Guthrie would cancel and surrender the notes of Morrison, then held by him, and would furnish to Morrison ah additional loan of $600 within twenty days, and would also assume the payment of, and thereafter pay, such notes and accounts then owing by Morrison to other parties, as Morrison should thereafter direct, to the amount of $619.21. It was further agreed that Morrison, as the agent of Guthrie, shoulJ be allowed to sell said goods and chattels at public vendue, at a credit of not to exceed one year, at such time before the first day of April then next, as should suit the convenience of Morrison, and that Guthrie should personally receive and receipt for all cash payments and notes taken at such sale and retain the same to the amount of the $2,400 notes then held by him, to apply in payment of said notes as they matured, Guthrie to account to, and pay over to, Morrison any surplus there might be arising out of said auction, over and above the amount due upon said $2,400 notes. It was further agreed that Guthrie should be allowed $200 for his services, etc., in the premises, which sum, with the sum then owing to Guthrio and to be advanced by him as above specified, made up the $2,400, the consideration of said notes and chattel mortgage. On the same day, and as a part of the same transaction, Morrison executed to Guthrie his three promissory notes for $800, each payable in three, six and eight months, respectively, with interest, and also the chattel mortgage in question, to secure the payment thereof. The mortgage authorized Guthrie to take possession of the mortgaged 'property and sell the same, in case of non-payment of said debt at maturity, or in case he should at any time deem the property or debt unsafe. The mortgage made no reference to the said agreement. The mortgage was duly filed on the 3d of November, 1883, but the agreement was never filed, and the plaintiff Brown had no knowledge or notice of it, when he levied his attachment, on the 20th of November, 1883. The referee found that upon the execution of the chattel mortgage, Guthrie canceled and surrendered to Morrison the notes for $980.79 then held by him, and that on the 3d of November, 1883, Guthrie advanced to Morrison the sum of $600 in cash in pursuance of said agreement. He also found that at the time of the execution of the said agreement, Morrison made a statement to Guthrie of persons to whom he was then indebted, and the estimated amount he was owing them respectively, and whom he desired that Guthrie should pay as thereafter directed by Morrison, to the amount of $619.21, in pursuance of the terms of said agreement, and that Guthrie subsequently paid thereon, in pursuance of the direction of Morrison, the total sum of $401.28.

At the time of the execution of the said agreement and chattel mortgage, Morrison was indebted to the plaintiff Brown in the sum of $7224.1 for the rent of a farm, to recover which Brown commenced this action, and therein procured and levied his attachment on the 20th of November, 1883. Said action afterwards progressed to judgment, and execution was issued thereon and returned wholly unsatisfied.

The referee found that the chattel mortgage was executed in good faith, and not with the intent to hinder, delay or defraud creditors. That finding, we think, is against conclusive evidence of a fraudu lent intent furnished by the papers themselves. The agreement and the mortgage were parts of one and the same transaction, and are to be read together as evidence of the intent of the parties. The provisions of the agreement, as between the parties to it, override and control the provisions of the mortgage, in all respects m which they clash with each other. The agreement shows on its face that the mortgage covered all the property of Morrison, and from the nature of the transaction and the subsequent inability of the plaintiff to collect his debt, as shown by the return of his execution wholly unsatisfied, it is apparent that, at the time of executing the mortgage, Morrison was insolvent. The agreement and mortgage were, therefore, in effect, an assignment by an insolvent debtor of all his property to one of his creditors, not only for the purpose of paying what he then owed to such creditor, but also, in trust, for the payment of such of his other creditors as he should thereafter designate, not exceeding the amount specified in the agreement. In that view of the case, the agreement contained several provisions which, if valid, secured to the mortgagor certain rights in respect to the mortgaged property, the effect of which, as it seems to us, was necessarily to hinder and delay his creditors.

One of those was the provision which gave the debtor the right thereafter to designate such of his creditors as should be paid by the mortgagee, thus enabling the debtor to create preferences among his creditors, subsequently to the transfer of his property. It is well established that a debtor cannot put his property beyond the reach of his creditors, by assigning it to trustees for the payment of his debts, unless at the time he definitely settles their respective rights under the conveyance. (Hyslop v. Clarke, 14 Johns., 458; Wakemam, v. Grover, 4 Paige, 41; S. C., in error, 11 Wend., 187; Sheldon v. Dodge, 4 Den., 217.) It is immaterial whether the power to create preferences is reserved by the assignor, or is given to the trustee; in either case it avoids the transfer. (Barnum v. Hempstead, 7 Paige, 568.) In the present case the mortgagee was clearly a trustee as to the payment of the claims of other creditors. By the transaction, provision wa,s made for a fund to be created and placed in his hands for that purpose, out of the assigned property, and he expressly bound himself to apply it accordingly. The trust could be enforced by the preferred creditors. (Burr, on Assignments, 536.)

Another objectionable provision in the transaction is that which .secured to the mortgagor the surplus that should remain after paying the mortgagee, and the creditors to be designated by the mortgagor, without making any provision for other creditors. That provision unquestionably rendered the transaction void, if we are right in regarding it as a general assignment, by an insolvent debtor, in trust for the benefit of preferred creditors. As was said by Bronson, J., in Barney v. Griffin (2 N. Y., 365, 371), sucl?assignments “ can only be supported when they make a full and unconditional surrender of the property to the payment of debts. The debtor can neither make terms nor reserve anything to himself until after all the creditors have been satisfied.” * * * Nor •can the deed “be made good by showing that there will be no surplus for the debtor after paying the preferred creditors. The parties contemplated a surplus and provided for it; and they are not now at liberty to say that this was a mere form which meant nothing. And although it should ultimately turn out that there is no surplus, still the illegal purpose which destroys the deed is plainly written on the face of the instrument, and there is no way •of getting rid of it.”

If the transaction had been simply a transfer to Guthrie for the •exclusive purpose of paying his own debt, the provision as to the .surplus would not have avoided it (Leitch v. Hollister, 4 N. Y., 211; Dunham v. Whitehead, 21 id., 131); but, as we have seen, the secret agreement transformed the instrument of conveyance from a mere mortgage for the security of the mortgagee into a .general assignment, in trust, for the benefit of other preferred creditors besides himself. Each of the provisions above considered appears to us to bring tbe transaction within the condemnation of the statute which declares void as to creditors all transfers of personal property made in trust for the use of the person making the same. (2 R. S., 135, § 1.)

"We are also inclined to the opinion that still another provision in the agreement has the like effect, to wit, the provision authorizing the mortgagor to sell the mortgaged property, at public auction, at such time before the first day of A pril then next as would suit his convenience. True, in so doing, he was to act as the agent of the mortgagee, and to account to him for the proceeds. But the power to sell and to receive the proceeds implied the power to deliver possession to the purchaser, and consequently gave the mortgagor the right to the possession until such time, within the limit prescribed, as he should see fit to sell. The fact that the mortgagee took immediate possession of the property, immediately after the plaintiff attached it, whether with or without the consent of the mortgagor’, does not alter the case.

For these reasons we are of the opinion that the judgment should be reversed, and a new trial ordered before another referee, costs to abide event.

Barker and Bradley, JJ., concurred; Haight, J., not sifting.

J udgment reversed and new trial ordered before another referee, with costs to abide the event.


text:
    ISAAC M. ADAMS, Respondent, v. CHARLES M. SPEELMAN, Appellant.

      Attachment — levy on property capable of manual delivery, made by its being talcen into custody by the sheriff— Gode of Oivil Procedure, see. 649.
    A levy under a warrant of attachment upon property capable of manual delivery is made by the taking of the property into the actual custody of the sheriff.
    The last sentence of subdivision 2 of section 649 of the Code of Civil procedure, providing that “ he must thereupon, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant and of the affidavit upon which it was granted,” is directory only, and a failure to comply therewith is an irregularity which does not destroy the effect of the levy if otherwise valid.

      Appeal from an order of the Monroe County Special Term, denying the defendant’s motion for a new trial on a case.

      John T. Knox and Charles S. Baker, for the appellant.

      D. Morris, for the respondent.
   Smith, P. J.:

Action to recover damages for the wrongful taking and detention of certain chattels alleged to be the property of the plaintiff. Defense, that the defendant, as sheriff, levied upon and attached the said chattels by virtue of two warrants of attachment issued out of this court in actions against Perry Adams, who, and not tbe plaintiff, was the owner of said chattels.

At the trial the defendant offered in evidence the attachments by virtue of which he claimed to have levied on the property, but they were excluded by the court and the defendant excepted. That exception raises the principal question in the case.

The question involves the construction of the second subdivision of section 649 of the' Code of Civil Procedure, and for the purpose of interpreting that subdivision it will be useful to consider the r entire section, which is as follows:

“ Sec. 649. A levy under a warrant of attachment must be made as follows:
“ 1. Upon real property, by filing with the clerk of .the county, where it is situated, a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff’s claim as stated in the warrant, and a description of the particular property levied upon. The notice must be subscribed by the plaintiff’s attorney, adding his office address, and must be recorded and indexed by the clerk in the same book, in like manner and with the like, effect, as the notice of the pendency of an action.
2. Upon personal property, capable of manual delivery, including a bond, promissory note or other instrument for the payment of money, by taking the same into the sheriff’s actual custody. lie must thereupon, without delay, deliver to the person from whose possession the property is taken, if any, a copy of the warrant and of-the affidavit upon which it was granted.
“■■8. Hpon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same; or, if it consists of a demand, other than as specified in the last subdivision, with the person against whom it exists; or, if it consists of a right or share in the stock of an association or corporation, or interest or profits thereon, with the president or other head of the association or corporation, or the secretary, cashier or managing agent thereof.”

In the present case, although there was testimony tending to show that the property, when taken by the sheriff, was in the constructive possession of Perry Adams, the father of the plaintiff, and that the sheriff delivered to him a copy of the warrants and of the affidavits upon which they were granted, yet there was evidence which warranted the conclusion that the actual possession of the property, at the time of the levy, was in the plaintiff. The plaintiff was not served with a copy of the papers. It is to be assumed that the trial judge found the facts to be as last above stated, and that upon that ground he excluded proof of the attachments. If a delivery of a copy of the warrants and affidavits to the person from whose actual possession the property was taken by the sheriff, constituted an essential element of the levy, without which there was no levy, the ruling was correct. If, however, the lack of such delivery was a mere irregularity, not affecting the validity of the levy, the ruling was erroneous.

The second subdivision expressly declares that a levy shall be made upon personal property, capable of manual delivery, by taking the same into the sheriff’s actual custody. The subsequent clause, requiring the delivery of a copy of the papers, we regard as directory merely: Had the language been to the effect that the levy shall be made by taking the property into the actual custody of the sheriff and by his delivering a copy, etc., the case would have been different. But that is not its effect. The clause requiring the delivery of a copy of the papers is not a part of the original section. It was adopted in 1879, two years after the section took effect. It was not intended to add to what was previously required to constitute a levy, but it imposed upon the sheriff a duty to be performed, without delay, after the levy was made. The original section, in defining what should constitute a levy on personal property capable of manual delivery, was declaratory of the common law. If the taking of the property by the sheriff, Into his actual custody, under process directing liim to take property, is not a valid and perfect levy, strange consequences might follow. The sheriff is required to Iceep the property attached by him. (Code Civil Pro., § 674.) May he redeliver the property to the person from whom he has lawfully taken it, on the theory that by his omission to deliver a copy of the papers he has no right to detain it ? He may maintain ah action to reduce to his actual possession an article of personal property, capable of manual delivery, but of which he has been unable to obtain possession (Code Civil Pro., § 655); or the plaintiff, by leave of the court, may bring such action in t'he name of the sheriff and himself jointly (sec. 677), or he may be joined with the sheriff in such an action brought by the latter. (Sec. 679.) Would it be a defense to such an action that the sheriff had not delivered a copy of the papers? If personal property attached, belonging to the defendant, has passed out of the hands of the sheriff, without having been sold or converted into money, and the attachment has not been discharged as to that property, he must, if practicable, regain possession thereof; and for that purpose he has all the authority which he had to seize the same under the warrant. (Sec. 708, subd. 3.) And a person who willfully conceals or withholds such property from him is liable to double damages, at the suit of the party aggrieved. (Id.) If, as the plaintiff’s counsel contends, a taking of the property by the sheriff into his actual possession is a void act, without a delivery of a copy of the papers, it seems to follow that the lack of such delivery would constitute a defense to an action brought under the provisions last referred to.

Each of the other subdivisions of section 649, by like language, defines what shall constitute a levy in respect to the class of property to which it relates. Under the first subdivision, a levy must be made on real property by filing with the clerk a notice containing certain particulars specified in the first sentence. It may be that each of those directions must be substantially complied with in order to constitute a valid levy (though we express no opinion on that point), but it seems clear that the requirements contained in the next sentence, as to the subscribing of the notice and the recording and indexing it, are directory merely, and their omission, while irregular, would not vitiate the levy.

The Code of Procedure (§ 184) required that, upon arresting a defendant, by virtue of an order of arrest, the sheriff should deliver to him a copy of the order and affidavit. It was frequently held that the requirement was directory, and its omission was an irregularity merely, which did not render the proceeding null. (Keeler v. Belts, 3 Code Rep., 183; Courter v. McNamara, 9 How. Pr., 255; Barker v. Cook, 40 Barb., 254; Mather v. Hannaur, 55 How. Pr., 1.)

The cases cited by the respondent’s counsel are not in point. In Pardee v. Leitch (6 Lans., 303), in which there was’an attempt to attach shares of bank stock, there was no levy whatever, a copy of the warrant not having been left with an officer or managing agent of the bank, and that being the essential thing required by the Code to constitute a levy. (Code of Pro., § 235.) In Flandrow v. Van Brunt (84 N. Y., 1) it was held that an attorney for the successful party in an action by whom a judgment was procured, is not an individual holding such property,” within the meaning of the provision of the Code of Procedure (§ 235), authorizing the execution of an attachment by service of a copy, and consequently that service of a copy of the warrant on such attorney was not a proper execution of the attachment. In Anthony v. Wood (96 N. Y., 180) the question now before us was not involved, and the turning point of the case was that the attachment debtor having transferred, although in fraud of creditors, the title to the promissory note sought to be attached, and the sheriff not having been able to obtain the actual custody of it, there was no effectual levy, and the sheriff could not assail the transfer as fraudulent. We do not understand even any dictum in that case to be in conflict with the views we have advanced. The point of all that Judge Finch said in that case on the subject of a levy is, that there can be no levy till the sheriff has taken the property into his actual custody.

It results from these considerations that the warrant of attachment should have been received in evidence, and that there should be a new trial.

Order appealed from reversed and new trial ordered, costs to abide event.

All concur.

Order reversed and new trial granted, with costs to abide the event;


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    ANNA JAYNES, Plaintiff, v. ALFRED JAYNES, Defendant.

      Husband and wife — the wife may sue a person for willfully enticing her husband away from her.

    P^aillt''®’ a married woman, brought this action to recover damages against the defendant for wrongfully and maliciously enticing her husband to abandon ker an<^ ^Ve aPart ^rom ^eri whereby she has lost the comfort and society of her husband and his aid in the support and maintenance of the plaintiff and their infant child, the issue of the marriage of the plaintiff with her said husband.
    After the plaintiff’s counsel had opened the case by stating these facts, the court granted a motion for a nonsuit.

      Held, error; that a wife has a right to the conjugal society of her husband, for the willful violation of which by a third person she may maintain an action in her own name.
    Such right is her “ separate property ” within the meaning of that term as used in section 7. chapter 90 of 1860, as amended by section 3 of chapter 172 of 1862, or i£ that be not so, then it is a personal right for an injury to which an action is given by the said acts.

      Van Arnam v. Ayers (67 Barb., 544) distinguished and not followed; Breiman v. Paasch (7 Abb. N. 0., 249); Baker y. Baker (16 id., 293) followed.
    Motion by the plaintiff for a new trial, on exceptions taken at the Orleans County Circuit, and ordered to be heard at the General Term in the first instance.

      H. D. Tucker, for the plaintiff.

      Sawyer & Bullard, for the defendant.
   Smith, P. J.:

The plaintiff, a married woman, brings this action to recover damages against the defendant for wrongfully and maliciously enticing her husband, Arthur Jaynes, to abandon her and live apart from her, whereby she has lost the comfort and society of her husband and his aid in the support and maintenance of the plaintiff and their infant child, the issue of the marriage of the plaintiff with her said husband. At the trial, the plaintiff’s counsel opened the case by stating the facts substantially as above set forth, and thereupon- the defendant’s counsel moved for a nonsuit, which was granted by the court.

The only question presented is, whether a wife has a right to the conjugal society of her husband, for the willful violation of which, by a third person, she may maintain an action in her own name. "We think the question should be answered in the affirmative. By the contract of marriage, at common law, the parties to it agree reciprocally to live together during the existence of the marriage, and each acquires a legal right to the society and companionship of the other. To that end the wife is bound to follow the husband wherever he may desire to establish hiinself, within the country of their domicile at the time of the marriage, unless by acts of injustice, or such as are contrary to his marital duties, the husband renders her life or happiness insecure (1 Bouv. Inst., 116, § 279), and she has the right to be provided with a home and all reasonable-necessaries in his house, so long as she fulfills her own duties. (2 Kent’s Com., 147.)

These reciprocal rights may be regarded as the property of the respective parties, in the "broad sense of the word property, which includes things not tangible or visible, and applies to whatever is exclusively one’s own. An unbroken series of decisions, from early times, holds that, for a willful invasion of the husband’s right to the society of his wife, he may maintain an action for damages against the wrong-doer. His right of action is not put upon the technical ground of a loss of service, as is sometimes suggested, but it rests upon the loss of the conjugal affection and society of the wife. (Weedon v. Timbrell, 5 T. R., 357.) Thus it has been held that the husband cannot maintain the action against one who has committed adultery with his wife, after the husband has voluntarily separated from her, and so relinquished his right to her society. (Id.) So, it has been held that a husband may maintain an action for alienating the affections of his wife and inducing her to refuse to live with him as his wife, although she be not physically absent or separate from him, and there be no pecuniary loss, or loss of service by an actual leaving or continuing away from service. (Heermance v. James, 47 Barb., 120.) It is laid down by Bishop in his work on Marriage and Divorce (secs. 777 781, 782, 799), that the refusal of the husband or wife to dwell with the other party to the marriage, as husband or wife, is desertion. And he cites cases in which ithas been held that there may be desertion though, the parties continue to occupy the same house. (1 Bish, on Mar. & Div., § 779 ; Fishli v. Fishli, 2 Little [Ky.], R., 337; Moss v. Moss, 2 Iredell [N. C.], R., 55.) The same writer says: “ Iz may be laid down as a rule that if one party refuse to the other whatever belongs to marriage alone, from emeses resting in the will, and not from physical inability, the refusing party would thereby voluntarily withdraw from whatever the relation of marriage, distinguished from every other relation subsisting between human beings, is understood to imply; therefore, he should be liolden to desert thereby the other.” (Mar. and Div., § 782.) This doctrine accords with the cases which hold that a third person who willfully and wrongfully alienates the affections of a wife from her husband and induces her to deny him the conjugal society which the marriage contract implies, although she continues to reside with him in the same house, is chargeable with a violation of the legal rights of the husband and liable to him in damages therefor. As then the the husband’s right of action does not rest upon the theory of a loss of service, or upon the idea that he is the superior and the wife the inferior, but stands upon the loss of the conjugal society or consortium promised by the marriage contract, no good reason is perceived for holding that the wife has not a legal cause of action on the like ground.

But as, at common law, the husband and wife were regarded as one person, and her personal rights were suspended, or incorporated with his, during coverture, so that if she were injured in her person or property, she could bring no action for redress without her husband’s concurrence, and in his name as well as her own (1 Bl. Com., 443), she was practically precluded from suing for damages caused by alienating the affections of her husband and enticing him away. Her only remedies were to sue in the ecclesiastical court for a restitution of conjugal rights (3 Bl. Com., 94), or, in a proper case, to proceed under the statute for a limited separation (2 R. S., 147, § 51, subd. 3), or to have her husband dealt with as a disorderly person. (1 R. S., 638:)

Her disability in that respect, we think, has been removed in this State by legislation. A married woman may now, while married, sue and be sued in all matters having relation to “ her sole and separate property,” or for any injury to her person or character, the same as if she were sole. (Laws 1860, chap. 90, § 7; amended, Laws 1862, chap. 172, § 3.) And it is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. (Code Civil Pro., § 450, as amended in 1879.) If we are correct in holding that the right, which the plaintiff alleges was invaded by the defendant in this action, was her separate property, the case is within the statutes referred to. If it be not property, in the sense in which the word property is used in the statutes cited, it is a personal right, and as the statute extends to all injuries, whether to property, person or character, it seems to be sufficiently comprehensive to embrace an injury to the right in question. ¥e are aware of only two reported cases in this State in which the question before us has been decided, and they are in conflict. In Van Arnam v. Ayers (67 Barb., 544) it was held, at a Special Term of this court, in a case similar to this, that the action is not maintainable. That decision was made before the amendment of section 450 pf the Code of Civil Procedure above referred to, and, as is to be inferred from the report of the case, was controlled in part by section 114 of the old Code, for which section 450 of the new Code was substituted. The latter section, as amended, is much broader than the former one. The extract from Blackstone’s Commentaries, upon which the court relied in part in Yan Arnam’s case, does not stand in the way of the views above expressed, for while that learned author says, in respect to the relatme injuries of which he speaks, that notice is only taken of the wrong done to the superior of the parties related, while the loss of the inferior is totally unregarded, the only reason he assigns for the doctrine is that the inferior hath no Itind of property in the company, etc., of the superior; and in regard to a wife, he says the wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture. If the views above expressed are correct, the reason assigned by the learned commentator no longer exists in the case of a married woman. (Jessante ratione, eessai lex.

In Breiman v. Paasch (7 Abb. N. C., 249), the General Term of the City Court of Brooklyn affirmed a Special Term decision, holding that the action will lie. Van Arnam v. Ayres was cited by counsel but not followed by the court., Neilson, Ch. J., who decided the case at Special Term, cited the cases of Lynch v. Knight (9 H. of L. Cas., 577), and Westlake v. Westlake (19 Alb. L. J., 494), decided by the Supreme Court of Ohio, under a statute which certainly went no farther than our own in enabling a married woman to sue alone and in her own name.

The learned counsel for the defendant argues that as the wife cannot maintain an action against her husband to compel specific performance of the marriage contract, nor to recover damages for its non-performance, she cannot maintain an action against a third person who persuades him not to perform his marital duties. The argument goes too far, for if it -were sound it would prevent a husband from recovering damages against one who entices, away his wife. Besides, while the law does not intervene between husband and wife to enforce the marital duties which each owes to the other, it may very properly give damages to the injured party against a wrong-doer by whose willful interference either is enticed away from the other.

Since the above was written our attention has been called to the case of Baker v. Baker (16 Abb. N. C., 293), decided by Mr. Justice Martin at Special Term, concurring with the case o'f Breiman v. Paasch (supra). Thasame question was decided the same way by Mr. Justice Macomber at the Monroe Circuit in October last.

We think the motion for a new trial should be granted, costs to abide event.

Barker and Bradley, JJ., concurred; Haight, J., not sitting.

Motion for new trial granted, with costs to abide the event.


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    SUTLIEF T. SEWARD, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Agreement that damages shall be fixed, by arbitration — when it does not pretent an action being brovght.

    In November, 1874, the parties to this action entered into an agreement in writing, whereby the plaintiff granted to the defendant a right of way across his farm, for the purpose of laying water pipes, fur the use of the water-works of the defendant, at a price agreed upon as compensation for such right of way. By the agreement the defendant obligated itself to pay to the plaintiff a fair and just compensation for any damage that may accrue to the said party of the first part, his heirs or assigns, by the breaking, bursting or leakage of said water pipes, or any of them, or from any other cause. It further provided that “'all compensation and damages, herein contemplated, that may accrue, aside from the amount herein above expressed and agreed upon for the above grant, provided the parties cannot agree upon the amount, shall be appraised and fixed by two disinterested persons,” etc.

      Held, that the agreement to arbitrate constituted no defense to an action brought by the plaintiff to recover damages caused by the leakage of the pipes.
    Appeal from a judgment in favor of tbe plaintiff, entered on a verdict rendered at tbe Livingston Circuit, and from an order denying a motion for a new trial made on the minutes of tbe court.

      J. N. Beoldey and O. F. Slooum, for tbe appellant.

      O. II. Stevens, for tbe respondent.
   Smith, P. J. :

In November, 1874, tbe parties to this action entered into an-agreement in writing, whereby tbe plaintiff granted to tbe defendant a right of way across bis farm, for the purpose of laying water pipes for the use of the water-works of' the defendant, at a price agreed upon as compensation for such right of way. By the agreement the defendant obligated itself also to pay to the plaintiff “ a fair and just compensation for any damage that may accrue to the said party of the first part, his heirs or assigns, by the breaking, bursting or leakage of said water pipes or any of them or from any other cause.” The agreement contained tbe following clause: “ And it is further understood and agreed between the parties that all compensation and damages herein contemplated that may accrue aside from the amount herein above expressed and agreed upon for tbe above grant, provided the parties cannot agree upon the amount, shall be appraised and fixed by two disinterested persons, one to be selected by each party, and in case they cannot agree, by an umpire, to be selected by them, and the award of two of the three thus selected, shall be final and conclusive upon the parties.”

The price agreed upon for tbe right of way was paid. This action was brought to recover damages alleged to have been caused by the leakage of the pipes. The defendant, by its answer, denied all liability therefor, and pleaded the agreement to arbtirate as a bar.

We concur with the trial judge in holding that the agreement to arbitrate constitutes no defense to this action. The case is of the class in which there being an independent and absolute agreement to pay damages, thé stipulation to arbitrate is regarded as a mere collateral agreement and not a condition precedent to the obligation to pay. The distinction is well established by numerous cases. A similar agreement was held to be collateral and no bar to an action on the main contract in Roper v. Lendon (1 El. & El., 825); Haggart v. Morgan (5 N. Y., 422); Hurst v. Litchfield (39 id., 377); and Gibbs v. The Continental Insurance Company (13 Hun, 611). But where the agreement is solely to pay such amount of loss or damage or other sum, as shall be ascertained by arbitration, it has been held that no action will lie for a breach until the sum has been so ascertained. (Scott v. Avery, 5 H. of L. Cas., 811; Adams v. Willoughby, 6 Johns., 65; The President of the D. and H. Canal Co. v. The Pennsylvania Coal Co., 50 N. Y., 250.)

In this case, the agreement of the defendant to make compensation is absolute and independent. The allegations in the complaint as to what had been done by the parties in respect to the choice of arbitrators were irrelevant to the cause of action, and were mere surplusage, there having been, in fact, no submission to arbitrators and no award. So, too, it was immaterial whether the failure to arbitrate was exclusively the fault of the plaintiff. If the stipulation to arbitrate’was broken by him, the breach gave the defendant a right of action to recover the damages thereby occasioned, but it did not release the defendant from its obligation to perform the principal contract.

The judgment and order should be affirmed.

Barker and Bradley, JJ., concurred; Haight, J., not sitting.

Judgment and order affirmed.