author: Earl, J. Andrews, Ch. J.

text:
    Edward M. Steck, Resp’t, v. The Colorado Fuel and Iron Company, App’lt.

      (Court of Appeals,

      Filed April 24, 1894.)

    Reference—Compulsory.
    The referable quality of an action, in the absence of consent of both parties, must be determined from the complaint alone, where plaintiff’s claim is put in issue.
    Appeal from order of the general term of the supreme court in the first judicial department, made January 12, 1894, which affirmed an order of special term, which granted a motion for a reference and appointed a referee. The facts, so far as material, are stated in the prevailing opinion.

      James Stikeman, for app’lt; William 0 Camman, for resp’t.
   Earl, J.

The plaintiff’s cause of action, as alleged in his complaint, is for his salary as general manager of the defendant at a stipulated price for the quarter-of the year ending December 31, 1892. The verified answer of the defendant gainsays and puts in issue all the material allegations of the complaint, and alleges counterclaims consisting of long accounts. It is conceded that .if the plaintiff’s cause of action had been merely put in issue by the answer, the action could not have been referred without the consent of both parties, and that either party demanding it would have been entitled to a jury trial. But the contention of the plaintiff is that because the counterclaims involve long accounts, therefore, the action may be compulsorily referred and all the issues therein tried before a referee. The question is thus presented again to this court whether, where the cause of action alleged in the complaint is not referable, the action can be made referable by anything which appears in the answer. We have several times answered this question in the negative, and we should do so again.

As it is sought to distinguish this case from our prior decisions, to which I will hereafter refer, and as we differ among ourselves, it becomes important, more particularly than ever before, to examine the grounds of those decisions, and to give somewhat fully the reasons for our present conclusion.

It was provided in the state constitution of 1777 that “trial by jury in all cases in which it has heretofore been used in the colony of New York shall be established and inviolate forever,” and that provision is contained in all the revisions of our constitution since that time. We have, therefore, to determine whether such an action as this could, prior to 1777, have been referred to a referee for trial without the consent of the parties. References of action pending in the common-law courts for trial before referees were not known to the common law, and, so far as they are now authorized, they are particularly provided for by statutes. Under the Dutch rule in the colony of New York actions involving long accounts could be referred to arbitrators or referees, and such a reference was a very common mode of trial during that period. But it was not pleasing to the English colonists, who had received the trial by jury from their ancestors, a priceless heritage secured by Magna Charta, and hence, some years after the capitulation of the Dutch to the English in 1683, by the Charter of Liberties and Privileges granted by the Duke of York to the inhabitants of New York, it was provided “ that all trials shall be by the verdict of twelve men.” See Charter, appendix No. 2, 2 Laws of 1813. Thereafter all actions in the common-law courts of the colony were triable before ■ juries, except the action of account, and that, was applicable only to a limited class of cases involving the examination and taking of accounts. It was one of the most difficult, dilatory and expensive actions known to, the law, and was very rarely resorted to. Rawson v. Rawson, 3 Hill, 59 ; Magown v. Sinclair, 5 Daly, 63. The difficulties attending the prosecution of such an action were such that the practice became general for merchants and others having long accounts to enforce their collection by actions of assumpsit, which were always then triable by jury. But the embarrassments attending the trial of such actions-by jury were such that, December 31,1768, an act, 2 Yan Scbaide’s Laws of New York, 517, was passed, with a preamble as follows : “Whereas, instead of the ancient action of account, suits are of late, for the sake of holding to bail, and to avoid the wager of law, frequently brought in assumpsit, whereby the business of unraveling long and intricate accounts, most proper for the deliberate examination of auditors, is now cast upon jurors, who at the bar are more disadvantageously circumstanced for such services ; and this burden upon jurors is greatly increased since the laws made for permitting discounts in support of a plea of payment, so-that by the change of the law and the practice above mentioned, the suits of merchants and others upon long accounts are exposed to- erroneous decisions, and jurors perplexed and rendered more liable to attaints ; and by the vast time necessarily consumed m such trials, other causes are delayed and the general course of justice greatly obstructed. Be it, therefore, enacted, etc., that whenever it shall appear probable in any cause depending in the supreme court of judicature of this colony (other than such as shall be brought by or against executors or administrators) that the trial of the same will require the examination of a long account, either on one side or the other, the said court is hereby authorized, with or without the consent of parties, to refer such cause by rule, to be made at discretion, to referees, * * * and if the report or award of the referees, or of the major part of them, shall be confirmed by the said court, and any sum be thereby found for the plaintiff, judgment shall be entered for the same, with a relicta verifications, as by confession, with costs, if by law the plaintiff would have recovered costs, had a verdict passed in the same cause for the sum so reported to be due; but if, after payment pleaded, any sum shall be reported to be due to the defendant, and the awárd be confirmed, he shall have judgment and recover his costs. * * * And when such referees shall report that nothing is due from the defendant, and the report be confirmed, then judgment shall be entered as by non pross, and the defendant shall recover his costs, to be taxed, and such judgment be a perpetual bar.” That was the first act in the colony of New York authorizing a reference in any common-law action. It was-undoubtedly a tentative act, and it expired by its own limitation on the first day of January, 1771. It was. revived and re-enacted by the act of February 16, 1771, and was to continue in force until February 1, 1780. It is evident that the people of this state parted with the trial by jury in any case with great hesitation and reluctance, as the temporary statute authorizing references was not re-enacted in 1780, and there was no such statute in this state from that date until 1788, when it was again substantially reinstated." It was in force prior to and at the time of the adoption of the constitution of 1777, and the question for our determination is whether, under it, such an action as this could have been referred. And I think that it could not have been. The preamble to the act may be read for the purpose of ascertaining its meaning and scope, and from that it clearly appears that the lawmakers were then dealing with actions brought by merchants and others-upon long accounts; that it was such actions only that were intended to be sent to referees for trial. The provision is that an action could be referred when the trial would “ require an examination of a long account, either upon the one side or the other,” and, therefore, it may be conceded that when the trial would involve the examination of a long account, under the practice as it then existed, upon either side, a reference could be ordered. But when I have made this concession little progress has been made. We must determine under what circumstances a long account could appear in the answer of the defendant, so as to make the action referable when a long account was not set forth in the complaint, and that makes it necessary for us to examine the ancient law of set-off.

Set-offs in common law actions were unknown to the common law. If a defendant had accounts or claims against the plaintiff he could enforce them only by an action commenced by him against the plaintiff. Even if the plaintiff’s accounts or claims were undisputed, and the defendant had accounts or claims against, the plaintiff far in excess of those made against him, he could not offset them, but was obliged to enforce them by an independent action. That practice was not changed in England until the acts 2 and 8 of George the Second, whereby set-offs were first authorized there. 3 Black. Com. 305 ; Barbour on Setoff, 24. They were authorized several years earlier in the colony'of.New York by the act, chapter 281 of the Laws of 1714. Yol. 1, New York ■Colonial Laws, Livingston & Smith edition, 106. In that act it was provided, “ that if any two or more dealing together be indebted to each other upon bonds, bills, bargains, promises, accounts or the like, and one of them commence an action in any court of this colony, if the defendant cannot gainsay the deed, bargain or assumption upon which he is sued, it shall be lawful for such defendant to plead payment of all or any part of the debt or sum demanded, giving notice in writing with the said plea of what he will insist upon at the trial for the- discharge, and give any bond, bill, receipt, account or bargain so given notice of in evidence, and if it shall happen that the defendant hath fully paid or satisfied the debt or sum demanded, the jury shall find for the defendant, and judgment shall be entered that the plaintiff shall take nothing by his writ and shall pay the costs; and if it shall appear that any part of the sum demanded is paid, then so much as is found to be paid shall be discounted and the plaintiff shall have judgment for the residue only, with costs of suit; but if it .appear to the jury that the plaintiff is overpaid, then they shall give in their verdict for the defendant, and withal certify to the court how much they find the plaintiff to be indebted, or in arrear to the defendant more than will answer the debt or sum demanded; and the sum or sums so certified shall be recorded with the verdict, and shall be deemed as a debt of record,’’ etc. That was the only law upon the subject of set-off enacted in the colony previous to the Constitution of 1777. At that time, and, I believe, at all times prior to the Code practice, notice of matter in .defense could not be given except in connection with some plea. The lawyers of that period could not conceive of a defense except under some plea, and at no time in this state, prior to 1801, could there be more than one plea to a declaration. The pleadings on both sides were required to be such as present for trial a single issue, and a pleading tendering several issues was bad for duplicity. 1 Chitt. PJ. 259, 264, 592. Under the act of 1714 the defendant could give notice of his set-off only with the plea of payment, and with no other plea, and under his plea of payment he could prove no payment except that accomplished by his set-off. There could not be two distinct issues, one upon the payment and the other upon the set-off, and under the plea of payment, with notice of set-off, the only matter that could be litigated was the set-off. A plea of payment, as well as a plea of notice of set-off, always admitted the plaintiff’s claim. They were pleas of confession and avoidance. Jacobs’ Law Die. and Tomlins’ Law Die., tit. Set-off; 2 Parsons on Con. 734; 2 Black. Com. 305. A .set off is defined to be “ a mode of defense whereby the defendant acknowledges the justice of the plaintiff’s demand on the one hand, but on the other sets up a demand of his own to counterbalance it, either in whole or in part.” Blackstone, at the page ■cited, says; “ To this head may, also be referred the practice of what is-called a set-off, whereby the defendant acknowledges the justice of the plaintiff’s demand on the one hand; but on the other sets up a demand of his own to counterbalance that of the plaintiff, either in the whole or in part, as if the plaintiff sues for ten pounds due on a note of hand, the defendant may set off nine pounds due to himself for merchandise sold to the plaintiff, and in case he pleads such set-off, must pay the remaining balance into court.” In 2 Parsons on Contracts, page 734, it is said: “ Set-off has been well defined as a mode of defense by which the defendant acknowledges the justice of the plaintiff’s demand, but sets up a demand of his own againt the plaintiff to counterbalance it in whole or in part.” And again, at page .741, it is said: “The essential difference between recoupment or reduction on the one hand, and set-off on the other, is that in set-off the ground taken by the defendant is that he may owe the plaintiff what he claims, but a part or the whole of the debt is paid in reason and justice by a distinct and unconnected debt which the plaintiff owes him.”

So, under the act of 1714, it was not possible for the defendant to give notice of his set-off and at the same time dispute the plaintiff’s claim. He could not have done so, even if the statute had not expressly provided that he could give notice of bis set off only in case he was not able to gainsay; the plaintiff’s claim. His plea of payment with notice of set-off necessarily confessed the claim. If the words “ cannot gainsay,” etc., did not condition the right of set-off, then they were absolutely without meaning, and no purpose for their use can be plausibly suggested or even conceived. Besides this express limitation, the whole framework of the statute shows that the right of set-off was limited to cases where the plaintiff’s claim was not in dispute, as the set-off was to be allowed—not against the claim or debt of the plaintiff found or established or actually existing—but against “ the debt or sum demanded.” These words quoted are not found in the English Statutes of Set-off, but are found in all the statutes upon the subject in this state until the Revised Statutes, when they, as well as the words “ cannot gainsay,” are for the first time omitted. The statute of 1714 was re-enacted, slightly changed, February 27, 1788, in the act “ for the amendment of the law and the better advancement of justice,” and again the defendant, in case he could not gainsay the plaintiff’s claim, was allowed, with the plea of payment, to give notice of set-off. By the act, chapter 90 of the Laws of 1801, a general practice act under the same title, it was provided that the defendant, in case he could not gainsay the plaintiff’s claim, could plead the general issue instead of payment as before, and with that give notice of set-off. It was also provided in that act, for the first time in this state, that it shall be lawful for any defendant or tenant in action in court of record to plead the general issue and to give any special matter in evidence which, if pleaded, would be a bar to such action, giving notice with the said plea of the matter or several matters so intended to be given in evidence;” and also, “that it shall be lawful for any defendant or tenant in any action, or for any plaintiff in replevin, in any court of record, with the leave of the same court, to plead as many several matters as he shall think necessary for his defense.” All these provisions were carried into the Revised Laws of 1813, including the provision allowing the defendant, if he could not gainsay the plaintiff’s chum, with the plea of the general issue to give notice of his set-off; and so the law remained until the Revised Statutes. Under these acts of 1801 and 1813 it was held that the notice of set-off could only accompany the general issue and no other plea, as before it could only accompany the plea of payment. Alsop v. Caines, 10 John. 396; Caines v. Brisband, 13 id. 9 ; Root v. Taylor, 20 id. 137 ; Wheeler v. Raymond, 5 Cowen, 231.

Under these acts, what was meant by the words “ if the defendant cannot gainsay” the plaintiff’s claim? They are not found in any statute of set-off in England or elsewhere in this country. Did the lawmakers in 1801 and 1813 mean to change the prior practice which had obtained when the notice of set-off was allowed with the plea of payment? Did they mean to deprive these words, which before had a meaning, of all meaning? Did they mean to permit the defendant to gainsay the plaintiff's claim when he was unable to do it? I believe they did not. They had not vet reached the stage of law reform which allows several actions to be tried in one. They were evidently not convinced of the wisdom and feasibility of allowing the defendant to .litigate the plaintiff’s claim and his own independent claims at the same time and in the same action; and I do not believe that such a practice ever obtained in this state prior to the Revised Statutes. The lawmakers allowed the notice of set-off to go with the general issue because under that, as under the plea of payment., the defendant could show payment. The general issue was a mere formal plea to sustain or give place for the notice of set-off, and not to authorize the defendant to litigate or dispute the plaintiff’s claim upon the trial. I have not overlooked the cases of Gordon v. Bowne, 2 Johnson, 150; Burgess v. Tucker, 5 id. 105 ; O'Callaghan v. Sawyer, id. 118; Tuttle v. Bebee, 8 id. 152 ; Root v. Taylor, 20 id. 137; Bridge v. Johnson, 5 Wendell, 342. In none of these cases was it held that the defendant could avail himself of his set-off upon the trial and at the same time dispute and litigate the plaintiff's claim. The only case which has come to my attention which gives any countenance whatever to such a practice is that of Gordon v. Bowne, where the question upon the plaintiff’s claim was one of law upon undisputed facts, and the decision there proceeded upon the ground that the set-off was not proper; and it was never -held in any reported case that the words “cannot gainsay,” etc., did not have the meaning and force which I have attributed to them. But whether I am mistaken or not as to the meaning of these words when the notice of set-off accompanied the general issue, is of no importance, as I cannot be mistaken as to their meaning when the notice of set-off was required to accompany the plea of payment only. ■

It was provided in 2 George II, chapter 22, section 13, that “ where there are mutual debts between the plaintiff and defendant, * * * one debt may be set against the other, and such matter may be given in evidence upon the general issue, or pleaded in bar, as the nature of the case shall require, so as at the time of his pleading the general issue, where any such debt of the defendant is intended to be insisted on in evidence, notice shall be given of the particular sum or debt so intended to be insisted on, and upon what account it became due, or otherwise such matter shall not be allowed in evidence upon the general issue.” This clause was made perpetual by the act, 8 George II, chapter 24, section 4, and it having been doubted whether mutual debts of a different nature could be set against each other, that doubt was removed by section 5, which authorized the set-off, notwithstanding the debts were deemed in law to be of a different nature; and it was provided that when the debt due to the defendant was less than that due from him, he must, on pleading such set-off, pay the remaining balance into court. Under the English statutes it was held that notice of set-off could be given only with the general issue. 1 Chitt. PL 606. As I have before stated, there was no provision in the English statutes allowing the defendant to give notice of his set-off only in case he was not able to gainsay the plaintiff’s claim; and some years before the passage of these acts, by the statutes of 4 and 5 Anne, it was provided, as afterward in this state in the acts of 1801 and 1813, that the defendant could, with the leave of the court, plead as many matters to the declaration of the plaintiff as he should think necessary for his defense. In drafting the act of 1801, which was carried into the act of 1813, the lawmakers here had before them the English statutes ; and why did they continue the provision that the defendant could give notice of his set-off only in case he could not dispute the plaintiff’s claim, if it was to have no meaning and effect, and if the statutes here were to have the same operation as the English statutes ?

This review of the statutes.shows clearly that prior to 1777, and for many years thereafter, a defendant was not permitted to setoff his claims against the plaintiff’s claims, except he admitted them. The provision for set-offs took this limited form to meet the obvious injustice of a case where the defendant was not able to gainsay the plaintiff’s claims, but yet had set-offs sufficient in whole or in part to pay and discharge them ; and thus it is clear that prior to that period there was no possible way of depriving the plaintiff of a trial by jury in case his cause of action was gainsaid.

There can, therefore, be absolutely no ground for saying that these accounts in this answer which disputes and gainsays the plaintiff’s claim, could prior to 1777 have been set up as a defense to the action, or that prior to that time there was any possible way for depriving the parties of a jury trial upon the issues formed upon the plaintiff’s cause of action.

It would not be useful now to examine more particularly the statutes as to set-offs and references enacted since 1777, as there has been no power in the legislature since that time to curtail the right o£ trial by jury. It could not do so by changing the form of pleadings, or by allowing set-offs and counterclaims where they could not have been interposed prior to that time. In the acts of 1788, 1801 and 1813, and in the Revised Statutes and the Code, the power to refer actions is continued in substantially the same language as that used in the act of 1768; and in the Revised Statutes, for the first time, as I believe, was the defendant enabled to plead or give notice of a set-off, and at the same time to put in issue and contest upon the trial the cause of action alleged in the declaration. I can safely assert that prior to the Revised Statutes there is no record in any book of any cause compulsorily referred where the complaint stated a disputed cause of action not involving the examination of a long account. I have examined all the old works on practice, and all the earlier reports, and have found no trace or hint of a practice that would authorize a reference in such a case as this; and since the adoption of the Revised Statutes and the introduction of the Code practice I am confident there is no reported decision of any court-of this state which sanctions the reference of an action merely because the answer involves a long account, when, upon the cause of action alleged in the complaint standing by itself, either party could command a jury trial, except the decision in the court below in this case, and in the cases where, upon appeals to this court, the decisions of the lower courts were reversed.

If it should-be asserted that the right of trial by jury bad, by the practice and usage of the courts, become curtailed prior to any of the modern revisions of the Constitution so as to give the meaning of the guaranty as to jury trial a more limited scope than it lmd in the Constitution of 1777, I answer that the assertion is unfounded.

I will now call attention to some decisions in this court. 'In Townsend v. Hendricks, 40 How. Pr. R. 143, the action was to recover back certain bonds and money obtained from the plaintiff by the fraudulent representations of the defendant, and to that action the defendant interposed a counterclaim requiring the examination of a long account. That case was literally within the law as to references, as it did involve the examination of a long account upon one side, and yet, after a careful consideration of the case, in the first opinion written by the late Judge Rapallo in this court, it was held that the action was not referable. In that opinion it was said : “It is further contended that the defendants have, by interposing a counterclaim consisting of a long account, rendered the examination of such an account necessary. It does not follow that the action can be referred for that reason. If the action is from its nature not referable, the answer cannot make it so. Should the counterclaim ever require examination, a reference can be ordered as to it after trial of the issues.” There the cause of action alleged in the complaint was such, that prior to 1777 a long account could not have appeared in the answer, and hence the action could not have been referred, and both parties would have had the right toa jury trial, and hence, no subsequent legislation could take away that right. In Welsh v. Darragh, 52 N. Y. 590, the action was upon contract for the sale and delivery of certain articles of merchandise, and the cause of action alleged in the complaint would require the examination of a long account. The answer set up fraud in the transaction, and claimed damages by way of recoupment or counterclaim ; and there, Chief Justice Church writing the opinion, again announced the doctrine, that the character of the action is determined by the complaint, and if that allege a cause of action upon contract involving a long account, the action is referable, and that, although the answer sets up fraud in the transaction and claims damages by way of recoupment or counterclaim, that does not change the character of the action, or render it non-referable ; and there the order of reference was affirmed, as the compliaint made the action referable under the act of 1768. The question again came before this court in Untermyer v. Beinhauer 105 N. Y. 521; 8 St. Rep. 1. There the cause of action alleged in the complaint was for the recovery of unliquidated damages for breach of contract and in no sense involved an account. The answer contained a counterclaim which required the examination of a long account, and the court again held, Judge Bapallo writing the opinion, that as the cause of action alleged in the complaint was not referable, it could not be made so by the counterclaim. In the opinion he referred to the language above quoted, which he used in the case of Townsend v. Hendricks. Why was not that action referable ? It involved the examination of a long account on one side, and thus the case was literally within the language of the act of 1768. The answer is very plain. It was not an action upon a long account; the cause of action alleged in the complaint was not referable; it was put in issue, and, therefore, although the defendant set up a counterclaim containing a long account, as he had the right to do, the action was not thereby made referable, and the defendant diet not lose his right to demand a jury trial. When he put in issue the plaintiff’s cause of action, if for no other reason, a case 'was made which could not have been referred under the act of 1768. In Cassidy v. McFarland, 139 N. Y. 201, 205 ; 54 St. Rep. 605, Maynard, J., said : “ It is sufficient, if the fact clearly appears from the verified proceedings, that the examination of a long account will be involved in the trial of the issues. The referable quality of the action must alone be determined from the complaint.” In New Jersey the law authorizes the reference of “ all actions in which the matters of account are in controversy,” and in Gospel v. Harvey, 34 N. J. Law, 435, it is said “ that it is the character of the plaintiff’s claim which determines whether the case is referable.” In Hall v. U. S. Reflector Co., 14 N. Y. Week. Dig. 48; 95 N. Y. 648, and 96 id. 629, the plaintiff’s cause of action was expressly admitted and the litigation was over matters alleged in the defendant’s answer, which in any view of the case, involved long accounts.

The construction I give to the acts of 1714 and 1768 is neither narrow nor technical.. It is dictated by the spirit of the times in which those acts were in force, when there was greater reverence for trial by jury than exists now, is required by their letter and spirit, léads to no absurd or inconvenient results, and is, as I believe, in harmony with the established practice of the courts for more than one hundred and twenty-five years. I would speak with less confidence if one authority entitled to any weight in this court holding otherwise could be found.

The meaning of the words, “ require the examination of a long account, either on one side or the other,” and of their analogies in the more recent statutes, has been frequently under consideration in the courts, and the words have not always been literally construed. They have required construction and their literal meaning has frequently been limited, as is shown by decisions of this court above cited, and by many other decisions.

To say that a cause of action is referable in its- nature when it has not of itself a single referable quality, and which cannot, on account of anything pertaining to it, be referred, is a most inaccurate use of language, and it is to me inconceivable that Judges Rapallo, Church and Maynard, in the opinions above cited, used the expressions as meaning a cause of action which could only be made referable by something appearing in the answer.

This discussion, therefore, comes to this : If the plaintiff brings his action upon a long account, then it is such as was referable prior to 1777, and as the examination of a long account is required on his side the defendant cannot defeat a reference by anything he may set up in his answer by virtue of the statutes allowing set-offs and counterclaims. If the plaintiff's cause of action be upon contract for a definite sum of money, or for damages, ecc contractu, and his cause of action be not gainsaid by the defendant, and the defendant sets up a counterclaim which requires the examination of a long account, then the case is such as would have been referable under the act of 1768. But if in such actions the plaintiff’s cause of action be disputed, then a case is represented, which, prior to 1777, gave the parties the absolute right to jury trial, and that the right cannot be taken away or destroyed by anything which the defendant may set up in his answer. These views furnish a plain rule for the guidance of courts, resting upon a solid basis, and I think it would be most unwise to countenance any other practice. According to the contention now made on behalf of the plaintiff, for the purpose of distinguishing this case from that of Untermyer v. Beinhauer, if the plaintiff brings an action to recover $1,000, payable to him by virtue of a contract, the defendant may dispute his claim, and set up a counterclaim which requires the examination of a long account, and then the action becomes referable. But if he sues upon a contract, possibly the same contract, seeking to rcover $1,000, unliquidated damages for a breach thereof, and his claim is disputed by the defendant, who also sets up a counterclaim requiring the examination of a long account, the action iknot referable. Such a distinction is not founded in reason, and no rule of convenience or of public policy requires that it should be adopted. The following authorities may also be referred to as sustaining the conclusion I have reached: 20 Am. Eng. Enc. 670 ; Williams v. Allen, 2 Hun, 377 ; Wood v. Hope, 2 Abb. N. C. 186; Verplanck v. Randall, 45 Supr. Ct. Rep. 525 ; Gregory v. Seaman, 51 id. 517. This conclusion preserves to the parties the constitutional right to trial by jury of the issues upon a non-referable cause of action alleged in the complaint, and & right to the reference oh the long accounts set up in the answer, and thus all the statutes have full force and effect, and the decisions of the courts are harmonized and rendered consistent

The orders of the general and special terms should, therefore, be reversed, and motion for reference denied, with costs in all the courts. . V

Andrews, Ch. J.

(dissenting) This appeal involves the question of the power of the court under the state constitution and laws to, order a compulsory reference of the action. The action is on contract and is referable in its nature. But having regard alone to the cause of action set forth in the complaint, it was not the subject of a compulsory reference for the reason that no long account was involved. The action was to recover four months’ salary alleged to be due and unpaid to the plaintiff under a contract of employment at an annual salary of $6,000. The defendant answered denying' the complaint, and in addition pleaded several defenses by way of counterclaim arising on matters of account and the answer concluded by a prayer for judgment that the plaintiff account for the moneys mentioned in the second and third counterclaims, and that the defendant recover the sum which might be found due from the plaintiff to the defendant on such accounting. The plaintiff replied denying the counterclaims, and then, upon the pleadings and proceedings and upon affidavit, moved for an order of reference, on the ground, in substance, that, upon the facts disclosed, it appeared that the trial of the issue on the third counterclaim in the answer would involve the examination of a long account. The motion was opposed by the defendant, but was granted, and an order of reference was made, from which the defendant appealed to the general term of the first department, which affirmed the order, and from the order of affirmance this appeal is taken. It was competent for the judge who granted the order to find upon the facts presented, that the trial of the issue on the third counterclaim would involve the examination of a long account, and that on the trial none of the issues would require the decision of any difficult questions of law, and this finding, having been affirmed by the general term, is not reviewable here.

The appeal, therefore, presents the question whether a compulsory reference may be directed in an action on contract to recover stipulated payments, upon it being made to appear that, although no long account will be involved in maintaining the plaintiff’s -cause of action, nevertheless such account will be involved and will be litigated on the issue raised by the counterclaim in the answer. The question presented in another form is whether a cause of action, referable in its nature, but which cannot be referred of itself alone, because not involving the examination of a long account, may be referred against the protest of either party, if a. counterclaim, also arising upon contract, is interposed, which will involve the examination of a long account

If the power to order a compulsory reference in this case depends alone on § 1013 of the Code of Civil Procedure, there can be no doubt that the court had jurisdiction to make the order. The language of the section is explicit and unambiguous. It authorizes a compulsory reference where the trial of an action will involve an examination of a long account “ on either side,” and there are no difficult questions of law. It needs no gloss or argument to-show that the case in hand is within the express language of the section. There is a long account on the side of the defendant, arising on its counterclaim, and the legal questions involved are of the simplest character. The words “ on either side ” in section 1013 are not new as applied to compulsory references. Compulsory references were first authorized by the colonial statute of 1768. Yan Schaick’s Laws, vol 2, p. 517. The act is entitled “An act for the better determination of personal actions depending on accounts.” The first section authorizes a compulsory reference whenever it shall appear probable “ in any case depending on the supreme court of j udicature of this colony (other than -such as-shall be brought by or against executors or administrators) that the trial of the same will require the examination of a long account either on the one side or the other.” The law authorizing compulsory references has been re-enacted in the successive revisions of the laws since the organization of the government, and in all of them the language of the colonial statute of 1768, that a reference may be ordered when it shall appear that the trial of an action will involve the examination of a long account “ either on one side or the other,” has been in substance retained and continued, so that at no time since 1768 have these words not been incorporated in the law relating to compulsory references. Laws of 1788, c. 46; Laws of 1801, ch. 90; Laws of 1808, ch. 1; 1 Rev. Laws 1813, ch. 56; 1 Rev. St. 348, § 39.

But the claim is made that, notwithstanding the broad and unqualified language of the statute, the constitutional right of trial by jury stands in the way of compulsory reference of actions on contract, where the plaintiff’s debt or demand is put in issue by the answer, and the necessity for the examination of a long account only arises upon a set-off or counterclaim interposed by the defendant. It is insisted that the words “ on either side ” in the statutes regulating compulsory reference are, by the operation of the Constitution, to be construed with this implied limitation. The Constitution of 1777 ordained that “ trial by jury in all cases in which it has heretofore been used in the colony of New York shall be established and remain inviolate forever,” and the same provision in substance is to be found in each of the subsequent state Constitutions. Under the Dutch rule all actions were triable by the court, and trial by jury was unknown. The question whether actions were referable never arose. There was no need of reference except for the information of the court. The argument is that the right of a defendant during the colonial period to interpose a set-off, depended upon and was limited by the Statute of Set-off enacted by the colony of New York in 1714, Van Schaick’s Laws, p. 95, and which continued in force until the revolution, and that the statute confined the right of set-off to cases where the defendant admitted on the record the plaintiff’s claim, and did not authorize a defendant to put the plaintiff’s claim in issue and at the same time to interpose a set-off. It is insisted, therefore, that the words “either on the one side or on the other” in the act of 1768, authorizing compulsory references, must be construed as referring only to cases where a long account was connected with the plaintiff's claim or arose on the defendant’s set-off interposed in connection with an admission of the demand of the plaintiff. The conclusion is, therefore, deduced that the power of compulsory reference at the time of the adoption of the Constitution of 1777, not having been extended to cases of set-off, connected with a denial of the plaintiff’s claim, the right of trial by jury in such a case then existed and was forever preserved by the Constitution. This argument and conclusion, even if founded upon correct premises, is very technical and unsatisfactory in its results, but it also proceeds, as I think, upon a misapprehension of the true meaning of the constitutional provision. But the arguments put upon the statute of 1714 a construction contrary to the practical construction uniformly applied by the courts to statutes of like character. The clause in the statute of 1714, Y an Schaick’s Laws, p. 93, authorizing set-offs that “ if the defendant cannot gainsay the deed, bargain or assumption upon which he is sued, it shall be lawful for such defendant to plead payment of all or any part of the debt or sum demanded, giving notice in writing with the said plea upon what he will insist upon at the trial for his discharge,, and give any bond, bill, receipt account or bargain so given notice of in evidence,” is claimed to limit the right of set-off under the statute to cases where the defendant admits and does not put in issue the plaintiff’s demand. But the words “ cannot gainsay the deed, bargain or assumption upon which he is sued,” and the subsequent words, were inserted simply to declare a rule of pleading and to enable a defendant who had no defense to the plaintiff’s claim, to prove, under a plea of payment, a set-off of which notice had been given, and these words were not intended to confine the right of set-off to cases where the defendant affirmatively admits the plaintiff’s demand. There are no negative words. Proof of disconnected demands would not support the plea of payment except by statute. If there might have originally have been a question as to the construction of the statute in this respect, the construction put by the courts upon similar words have removed any doubt. The Statute of Set-offs of 1714 and the act of 1768, authorizing compulsory references, were in substance re-enacted and incorporated into the “Act for the amendment of the law and the better advancement of justice,” of February 27, 1788, chapter 46, 2 Green!. Laws, 102; also in the act of the same title chapter 90 of the Laws of 1801,1 Webster’s Laws, 347; also in. the Laws of 1813, 1 Rev. Laws, c. 56, p. 513, In each of these statutes the section relating to set-offs contains the same words found in the statute of 1714, “ if the defendant or defendants cannot gainsay the deed, bargain or assumption upon which he, she or they is or are sued, it shall be lawful,” etc. Numerous cases are found in the reports of this state, commencing from an early period after the formation of the state government, arising under these statutes, where, in connection with the general issue, the defendant gave notice of set-off. The set-off was in some cases allowed and in some cases disallowed, but in none of them was it suggested by court or counsel that the defendant, in order to avail himself of the right of set off, must admit the plaintiff’s demand. On the contrary, not only was the plaintiff’s claim put in issue in all these cases, but in some of them it was litigated on the trial. Gordon v. Bowne, 2 Johns. 150 ; Burgess v. Tucker, 5 id. 105; O’Callaghan v. Sawyer, id. 118; Tuttle v. Bebee, 8 id. 152; Root v. Taylor, 20 id. 137; Bridge v. Johnson, 5 Wend. 342. These cases refute the claim that, prior to the Revised Statutes, a defendant could not contest by his pleading, and upon the trial, the plaintiff’s claim, and at the same time insist upon a set-off in case he failed to establish his defense to the plaintiff’s cause of action. It cannot be supposed that the judges and lawyers of that time were unacquainted with the practice of the colonial courts, or that they overlooked so easy an answer to the defense of set-off as that furnished by the words “ if the defendant cannot gainsay the deed, bargain or assumption upon which he is sued,” if they have the construction now claimed for them. It is noticeable that in the case of Root v. Taylor, Spencer, Oh. J., quotes the statute of 1813, and included in the quotation are the words, “ if the defendant cannot gainsay,” etc,, and in that case, which was assumpsit for goods sold and delivered, the defendant had pleaded the general issue with notice of set-off. The rule that the defendant may at the same time deny the plaintiff’s claim and give notice of set-off, and thereby put the plaintiff, to proof of his demand prevailed in England under the English Statutes of Set off. 2 Greo. II, c. 22, § 13, and 8 Greo. II, c. 24, § 4. Harrington v. Macmorris, 5 Taunt. 228, was an action for money had and received, money lent, etc. The defendant pleaded the general issue with notice of set-off, the particulars of which were furnished. The jury found against the set-off. The plaintiff relied for proof of his claim on the admission of the notice of set-off, and had a verdict. The verdict was set aside on the ground that the admission in the notice of set-off was not available to the plaintiff to establish his demand. Lord Mansfield said : “ It is every day’s practice that the defendant’s language in one plea cannot be used to disprove another plea, as in the familiar instance I have given of trespass, and justification pleaded, when the justification would certainly, if admissible, prove the act in case the reason of justification fails. Therefore, the particulars of the set-off must be incorporated with the notice of set-off and cannot be given in evidence to prove the plaintiff’s demand on the issue of non-assumpsit.” The quotation from Blackstone (vol. 3, p. 304) is quite consistent with the opinion of Lord Mansfield. The commentator is there speaking of the rule relating to tender and the payment of money into court to mitigate damages and costs, and he says in substance, that, under a plea of set-off (which, standing alone, necessarily admits the plaintiff’s claim), it is necessary, if the set-off does not equal the plaintiff’s debt that the defendant should pay the balance into court to have the benefit of tender in mitigation of further costs, etc. The rule that the general issue with notice of special matter, puts in issue the plaintiff’s cause of action, is elementary. 1 Chit. Pleadings, 478 ; Vaughan v. Havens, 8 Johns. 109. It has been frequently applied by other courts in this country in case of set-off. Price v. Combs, 7 Halst. 188; Morgan v. Boone, 1 J. J. Marsh, 585. There are no records showing the practical construction placed by the colonial courts upon the statute of 1714 upon the point now in question, but the English Statutes of Set-off were enacted nearly fifty years before the organization of our state government under which the practice prevailed of permitting a defendant to deny the plaintiff’s claim in connection with notice or plea of set-off. It is presumable that the same practice 'was followed in the colony, and the practice of the state courts, following the English practice under statutes similar to that of 1714, makes this presumption almost a certainty. The English decisions, says Chief Justice Kent, in Gordon v. Bowne, on the construction of the English Statute of Set-off, “ are perfectly in point as to the construction of our act,” and statutes of set-off, from the time of their enactment, have been “ liberally expounded to advance justice and prevent circuity of action.” Thompson, J., in Tuttle v. Bebee, 8 Johns. 152. The argument against the power to order a compulsory reference in this case based upon the assumption that when the Constitution of 1777 was adopted, no long account could be litigated arising on a set-off, except where the defendant admitted the plaintiff’s claim, and that the act of 1768 authorizing compulsory references did not apply in a case like the present one, wherethe plaintiff’s claim is denied, proceeds upon false premises and cannot be maintained.

■ But there is, I think another conclusive answer to the objection based on the Constitution. The words in the Constitution of 1777 2 trial by jury in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolable forever,” were intended to preserve the right of jury trial in the classes of cases where trial by jury before as of right existed. In expounding this provision the principle which governed the colonial practice permitting compulsory references is to be applied. Cases of the same class and governed by the same principle of public policy as those within the act of 1768, may be referred consistently with the constitutional provision, although the exact case in hand was not within the terms of the statute. The policy upon which the statute of 1768 was enacted is recited in the preamble, which, after referring to the disuse of the action of account and to the law of 1714 permitting discounts in support of the plea of payment, proceeds to declare : “ So that by the change in the law and practice above mentioned, the suits of merchants and others upon long accounts are exposed to erroneous decisions and jurors perplexed and rendered more liable to attaints, and by the vast time necessarily consumed in such trials, other causes are delayed and the general course of justice greatly obstructed ; it is enacted, therefore,” etc. It cannot be supposed that the Constitution of 1777 intended to prevent a reference of cases of the same general class as those specified in the act of 1768, and as to which the same considerations of public policy applied, even although, by reason of the rules of pleading and procedure prevailing in the colony, a set-off in a particular case involving the examination of a long account was not permitted. The principle established by the colonial legislation was that actions on contract involving litigations of long accounts “on either side ” should be referred for trial to referees, to relieve jurors from perplexity and to prevent the obstruction of justice. This legislative power was not abrogated by the constitution. It would be a narrow and injurious construction of the constitutional provisions 'that unless you are able to point out the precise case under colonial laws, a compulsory reference cannot be had. The act of 1768 exefepted from its operation suits, brought by or against executors or administrators.” - This exception was expressly abrogated in the act of 1788 and the subsequent statutes of the state. But this abrogation of the exception was inoperative and in violation of the Constitution, if you say that no compulsory reference can be authorized in any case not referable under the colonial laws, although the case is within the principle and policy upon which the laws were based. If the Constitution restricts, as is claimed, the power of compulsory reference to the exact cases specified in the colonial act of 1768, then I perceive no escape from the conclusion that whenever now an executor or administrator is a party to an action, it cannot be compulsorily referred , although the action may be on contract and involves a long account on either or both sides. The present case is an action on contract for debt. The set-off was also a matter of account. It was properly pleaded. The statute of set-off permits the defendant to contest the plaintiff’s claim, and, at the same time, to insist upon a set off. The trial of the set-off involves the examination of a long account. The statute permits a compulsory reference in such case, and no constitutional right, I am persuaded, stands in the way of its enforcement.

But it is said that the question involved in this case has been decided adversely to the power exercised, in three cases in. this court, viz.: Townsend v. Hendricks, 40 How. Pr. 143 ; Welsh v. Darragh 52 N. Y. 590, and Untermyer v. Beinhauer 105 id. 521; 8 St. Rep. 1. This is a plain misapprehension. It is said in those cases that the referable character of an action is to be determined by the complaint This was an accurate expression, having reference to the cases in which it was used and the sense intended.

Bearing in mind two well settled principles established by the decisions, first that actions ex delicio were not the subject of compulsory reference, either in the colony of Hew York or afterwards Johnson v. Parmely, 17 Johns. 129 ; Green v. Patchin, 13 Wend. 293 ; Dederick's Admrs. v. Richley, 19 id. 108 ; second, that set-offs are not allowed in actions for unliquidated damages, although arising on contract, “ as for not delivering goods according to contract,” 1 Chit. PL 572; Duncan v. Lyon, 3 Johns. Ch. 351; Hepburn v. Hoag, 6 Cow. 614, the principle on which the decisions in this court proceeded in the cases referred to, is readily ascertained. Townsend v. Hendricks was an action for damages for false representations. The court, after referring to the pleadings, said: ‘“The action must, therefore, be held to be one founded in tort, and not referable against the will of either party.” Welsh v. Darragh was an action on a contract for the sale and delivery of merchandise sold by the plaintiff to the defendant The defendant, among other things, set up in his answer fraud and deceit in the sale of certain other merchandise not included in the complaint. A reference having been ordered on the application of the plaintiff, the defendant appealed from the order. He resisted the reference on the ground that the issue of fraud raised by the answer was not referable, seeking to apply to the case the rule that actions of tort are not the subject of compulsory reference. This court affirmed the order of reference, and in its opinion first stated that the action being on contract the case was referable in its nature. The court then considered the claim of the defendant, that the issue of fraud raised by the answer prevented the order of reference, and, deciding against this construction, said: “If the action is a referable one, the answer cannot make it non-referable.” Having disposed of these questions, it proceeded to consider whether, upon the facts, a long account was involved in the plaintiff’s cause of action, and, reaching a conclusion that there was, affirmed the order. There is no hint in the opinion of the doctrine now contended for, that in an action upon contract a compulsory reference may not be ordered, where the examination of a long account will become necessary on the trial of a counterclaim arising on contract, unless the plaintiff’s cause of action involves the examination of a long account, or the plaintiff’s claim is admitted. Untermeyer v. Beinhauer was an action to recover unliquidated damages for the breach by a builder of a building contract, and the court held that such an action was never referable against the will of either party, saying : “It was simply an action for unliquidated damages for the breach of contract and in no sense involved any account.” Neither of these cases sustain or tend to sustain the contention here. The case of Kain v. Delano, decided by this court and reported in 11 Abb. Pr. N. S. 29, was an appeal from an order of reference made on the ground that the trial of an issue raised by a counterclaim would require the examination of a long account. The plaintiff’s claim consisted of but a single item, and was denied by the answer, which also set up a counterclaim. This court reversed the order of reference on the ground that the fact upon which the order proceeded did not appear. It assumed that the order would have been justified if it had appeared that the. issue on the counterclaim would require the examination of a long account. The rule here contended for is plain, simple and practical. It is consistent with the constitution. It is in harmony with the public policy upon which statutes for compulsory references are based. The opposite rule violates the language of all statutes on the subject framed since colonial times. It is based on views so close and critical that they can be comprehended only with difficulty. It puts it in the power of a plaintiff by exaggerating his own claim, to prevent its admission by the defendant, and thereby defeat a reference of a long account arising on counterclaim. If the order in this case is reversed, the court will, I think, reverse the practice which has prevailed in the courts of this state without question for more than a hundred years. It is the strongest confirmation of the view that the words “on either side” mean what they plainly import, that no suggestion can be found in any of the reports, so far as I can discover, of the limitation now contended for. If a practice prevailed in opposition to the natural import of the words, a trace of it would have been found. There would have been some judge or lawyer who would have queried how this could be. The distinction is between actions of a referable quality and such as are not referable by their very nature. In the one class the court may compel a reference, if on “either side ’’there is a long account; in the other, no reference can be compelled, however many items of damage there may be. I think the order should be affirmed.

All concur with Earl, J., for reversal, except Andrews, Ch„ J., Finch and O’Brien, JJ., dissenting.

Orders reversed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Henry H. Snow, Resp’t, v. Joseph Pulitzer, App’lt.

      (Court of Appeals,

      Filed April 24, 1894.)

    1. Party walls—Support—Lessor and lessee.
    Where the owner of two adjoining houses leases one, which is so constructed as to require the support of the wall of the other house, and his grantee, during the term of such lease, removes the supporting wall, the latter is liable in damages to the tenant.
    2. Same—Liability.
    His responsibility does not depend upon his knowledge that the removed wall was necessary to the support of the wall of the leased building.
    3. Same—Defense.
    The fact that the fire department caused the greater portion of the wall to be removed, is no defense.
    4. Same—Damages. *
    In such case, if the lessee is evicted and his business broken up, the prospective profits of such business for the remainder of the term is a proper item of damage.
    Appeal from judgment of the general term of the supreme' court in the second judicial department, entered upon an order made December 12, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new.trial. This action was brought to recover damages to property held by plaintiff, as lessee, and caused by the tearing down of an adjoining building. The facts, so far as material, are stated in the opinion.

      John N. Mowers, for app’lt; Abel OrooJc, for resp’t.

       Affirming 49 St. Rep. 911.

   Earl, J.

In 1848 Mr. French erected as even-story building in the city of New York. Subsequently another person erected an adjoining four-story building, atid still later another owner erected another adjoining building, thus making three buildings in the block. There were no party walls, the buildings all having independent walls. Subsequently French became the owner of all the buildings and converted them into a hotel, called French’s Hotel, the buildings being used together as one building with doors and openings through them.

The hotel property passed by will from French to his daughter,. Helen A. French, and in January, 1886, she leased the first floor of the four-story building to the plaintiff for a term ending on the first day of May, 1889. While the plaintiff was in the occupancy of his store, on the 10th day of April, 1888, she conveyed the entire block, designating it as French’s Hotel, and describing it as an entirety, subject to the lease, to the defendant. In June thereafter he commenced to tear down the seven-story building, and after the four upper stories thereof had been removed down to the third story of the four-story building, it was found that the wall of the four-story building was supported by the adjoining wall of the seven-story building, and that it conld not stand without such support and it began to crack and break and there was imminent danger of its falling. Upon making this discovery the persons engaged in taking down the seven-story building under the defendant discontinued their work; and thereafter proceedings were taken by the fire department of the-city of New York by which the four-story building was condemned as unsafe, and there was a judgment directing the superintendent of buddings to remove the same ; and in obedience to that judgment the defendant tore down the four-story building, and the plaintiff was thus deprived of the benefit of Ins lease, was ousted from the possession of the store and his business broken up; and he brought this action to recover bis damages.

The contention of the defendant is that the plaintiff was not entitled to have the wall of the building in which his store was situated supported by the adjoitdng wall of the seven-story building, that there was no easement in that wall for the support of the wall of the four-story building, and hence that no legal wrong was done to the plaintiff by the tearing down of that wall.

The trial judge held that if at the time of the lease to the plaintiff the wall of the building in which his store was located was dependent for support upon the adjoining wall, he was entitled to snob support, and the defendant could not lawfully remove that wall, and thus render the four-story building untenantable. In this ruling we think the trial judge was clearly right. We are not dealing with a case where at the time of the demise the two buildings were separately owned, but with a case where they were owned by the same person, and where all the buildings were held and owned as one entire property. When the plaintiff leased his store he became entitled, as against the lessor, to the store as it then was, and as against him to have the walls snfficiont.lv supported as they then were; and if the wall of the four-story building could not stand of itself, then he was entitled to the support of the wall of the seven story building, and the two walls constituted the wall of his building ; and the defendant had no right to remove any portion of the wall of the four-story building, or -any of its supports, so as to drive the plaintiff from his store. A landlord in such a case would have no more right-to take down the supporting wall than he would to tear down the demised building itself.

The contention of the landlord here is against both reason and justice, and has no support in any precedent or any principle of law. The rights of the plaintiff do not depend upon the technical doctrine of eviction. The defendant was a trespasser and a wrongdoer, and is just as responsible for the consequences of his acts as he would have been if he had removed the roof from the building or entered the plaintiff’s store and physically expelled him. The responsibility of the defendant in no way depends upon his knowledge that the wall of the seven-story building was necessary to the support of the wall of the four-story building. He was bound to know what he was about and cannot shield himself against a trespass because he did not foresee the consequences of his acts, or even because he did not know that he was trespassing. If he supposed that he was entitled to take down the wall of the seven-story building, to the support of which plaintiff was entitled for his store, he was mistaken, and is responsible for, the consequences of his mistake. When he heard that the wall of the four-story building could not stand without the support of the wall of the seven-story building, he was bound to take the consequences of his acts or to rebuild that wall and thus support the wall of the four-story building.

The defendant is not protected from responsibility in this case, because, after he had removed the wall of the seven-story building down to the third story óf the four-story building, thus rendering the latter dangerous and insecure, the fire department caused it to be removed. It was his act that brought on the proceeding by the fire department. He created the danger which invoked its action. It was due to his act solely that the building was finally taken down, and the plaintiff ousted and deprived of his lease. While no authority is needed for a conclusion depending on such obvious principles of right and justice, the case of Richards v. Rose, 9 Exchequer R. 218, may be cited as having some bearing. There it was held, that where several houses belonging to the same owner are built together, so that each_ requires the mutual support of the neighboring house, and the owner parts with one of the houses, the right to such mutual support is not thereby lost, the legal presumption being that the owner reserves to himself such right, and at the same time grant to the new owner an equal right; and, consequently, if the owner parts with several of the houses at different times, the possessors still enjoy the right to mutual support, the right being wholly independent of the question of the priority of their titles.

The learned counsel for the defendant complains that an improper rule or measure of damages was adopted by the trial judge. It was provided in the lease of the store to the plaintiff that the store should be used exclusively for the sale of confectionery; and at the time the plaintiff was evicted and his business broken up he was doing a large and profitable business in his line, and had on hand a large quantity of confectionery which he was required to remove. The trial judge held that if the plaintiff was entitled to recover at all he was entitled to recover the damages which were the natural consequences of the- destruction of the building occupied by him and his eviction therefrom. He had made some expenditures in fitting up the store for his business, and the judge charged the jury that he could take those expenditures into consideration. There was also damage to, and depreciation of, the stock of confectionery he had on hand, and the judge charged the jury that they could take that into consideration. He also charged the jury that, in estimating the plaintiff’s damages, they could consider the profits he could have made in his business if he been permitted to carry it on to the end of his lease. The charge of the judge as to these various items of damages seems to have been carefully limited and explained, and the only exception to which our attention is called bearing on the damages is the final exception in the case to the charge in respect to the measure of damages.” The judge was not requested to limit or explain his charge as to the measure of damages or in any way to modify the rules laid down by him, and his attention was not called to any particular part of his charge on the question of damages of which complaint was made; and hence the general exception is not available here. But the principal item of recovery was on account of the prospective profits in the plaintiff’s business during the remainder of the term of his lease, and that they were proper to be considered in estimating his damages in a case like this, where he was evicted and’his business broken up by the trespass and wrong of the defendant, was decided in Schile v. Brockhahus, 80 N. Y. 614.

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

All concur, except Gray, J., not voting.

Judgment affirmed.


author: Finch, J.

text:
    Radcliffe Baldwin Resp’t, v. The Sullivan Timber Company, App’lt.

      (Court of Appeals,

      Filed April 24, 1894.)

    1. Charter party—Construction.
    In an action for demurrage for detention of a vessel in consequence of delay in delivering the cargo, the delivery referred to in the charter party was held to be the final and complete delivery to the vessel, which did not occur until the cargo was loaded and stowed; and so passed out of the custody and control of the charterer.
    ■2. Same—Sundays.
    Sundays are not to be deducted after the demurrage begins to run.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made October 21, 1872, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This action was brought by plaintiff, as assignee of the Neptune Steam Navigation Company, to recover damages for an alleged breach of a charter party made between it as owners of the steamship “Albans” and defendant. On the 6th of April, 1888, the agents of the owners and the defendant entered into a charter party agreement, by which the latter chartered the steamer named, for a voyage from the port of Pensacola, Florida, to a port in the United Kingdom or other destination as might be ordered on signing bills of lading. Among other things it was agreed that the ship should proceed to Pensacola, there load (always afloat) from the charterer a full and completé'cargo of sawm boards or deals, the charterer to do the stowing of the cargo, supply dogs and chains, furnish cargo as fast as required for loading, and only such as could go through the ship’s hatches, and pay watermen. The cargo “tobe delivered alongside at merchant’s risk and expense, and to be received by the master and secured by the ship’s dogs and chains; when so delivered to be then at the ship’s risk.” The lay days were to commence the day after the vessel was ready to receive cargo in loading berth and written notice given of such readiness to charterer, “ and should the cargo not, be delivered to vessel at Pensacola within specified time, for each and every day over and above said lay days, charterers are to pay, day by day, the sum of eighteen pence sterling per net register ton demurrage ; any detention through quarantine not to count in lay days.” The charter party also contained the following provision: “ The charterer’s responsibility under this charter shall cease as soon as the cargo is shipped and bills of lading signed, providing the conditions called for in this charter have been fulfilled or provided for by bills of lading.” The ship proceeded to Pensacola and loaded, but, the plaintiff claimed, was unnecessarily detained, and he demanded demurrage, or damages in the nature of demurrage, for such detention, in consequence of alleged default in stowing or furnishing cargo as fast as required for loading, and claimed also’ to recover the expense of towage incurred to enable the steamer to lie afloat, she having been directed by the defendant’s agent to a loading berth where she grounded and from which it was necessary to remove her, and also money expended for water and for dogs and chains which the ship was obliged to pay for. In opposition to the claim for demurrage it was urged by the defendant that under the express terms of the charter party no liability exists; that its provisions in that regard are limited to delays occasioned by failure to deliver cargo alongside ship, and nothing being said in the contract concerning delay in loading all claim therefor is excluded, and a motion for a non-suit was made on that and the further ground that there was no proof either of default in delivering as fast as possible to the vessel nor of damage for failure to load—the liability for the stipulated amount of demurrage being confined to the contingency of neglect to deliver ’cargo to the vessel. This motion was denied.

      L. Lajlin Kellogg, for app’lt; William D. Guthrie, for resp’t.
   Finch, J.

We should affirm this judgment upon the opinion of the general term, but for a criticism upon it which seems to require an answer. The whole present contention of the appellant turns upon the distinction asserted, that delivery by the shipper did not include the loading and stowing upon the vessel. Since there was no delay in bringing the timber alongside, but only in loading and stowing it, it is argued that there was no basis for the demurrage which the charter party contemplated; that if demurrage became due it flowed from a neglect of duty which was outside of the contract, creating a cause of action in tort not pleaded, and to which the contract measure of damages did not apply. The learned counsel for the appellant insists that this view of the case was not met by the general term, and that its decision was manifestly erroneous.

The effectual answer to this contention lies in a correct construction of the charter party, and a denial of the distinction attempted to be drawn. That instrument should have a reasonable rather than a technical construction, and its general purport should prevail over the narrowness of a single word. The vessel was to be loaded afloat. The charterer was to bring the timber alongside, and load and stow it Upon the vessel. The latter was simply to furnish steam if required to operate the steam winches, but the charterer was to do the stowing of the cargo, which it is conceded includes the loading, and to supply the dogs and chains necessary for handling it. There is a further provision that the cargo is “ to be delivered alongside at merchant’s risk and expense, and to be received by the master and secured with the ship’s dogs and chains when so delivered and to be then at ship’s risk.” This clause was needless if a mere delivery alongside was a complete delivery to the vessel, for after such complete delivery the liability of the ship would of course attach. The need of the provision lay in the fact that delivery alongside was not a complete delivery, because the merchant was still to remain in possession and control of his lumber for the purpose of loading and stowing it, and before that was accomplished the ship would assume no risk unless by force of a particular and specific provision, which, therefore, was added, and which put upon the vessel simply the duty of holding the timber safely alongside to enable the shipper to complete his delivery by loading and stowing. And so when the parties agreed in the terms of their contract that if the cargo should “ not be delivered to vessel at Pensacola ” within the specified time demurrage at a specified rate should be allowed, the delivery referred to is the complete and final delivery, not merely “ alongside,” but to the vessel, which did not occur until the lumber was loaded and stowed and so passed out of the custody and control of the merchant and into that of the ship. Wherever a delivery “ alongside ” alone is meant that qualifying word is used, and its omission when “ delivery to the vessel at Pensacola ” is prescribed in the clause relating to demurrage indicates that a complete delivery to the ship, ending the duty and control of the charterer, was what was meant

This construction is supported by a reference to the situation and relation of the parties. The vessel might be delayed not merely by the delay of the merchant in bringing the lumber alongside, but also by his delay in his further contract duty of loading and stowing it. The. purpose of demurrage was to compensate the ship for loss of time occasioned by the fault of the merchant, and it is not reasonable to suppose that delay in one respect only was the thought and purpose of the parties when delay in the other would accomplish the same injurious result. This construction of the contract, which was undoubtedly the understanding of the parties at the time of its execution, furnishes a sufficient answer to the principal contention of the appellant.

His exception to the refusal to charge that the three Sundays intervening between the 17th of April and the 7th of May should be deducted was not well taken. The request was too broad. The 17th of April was the end of the lay days and the-7th of May was the date of sailing. Sundays are not to be deducted after the demurrage begins to run. Lindsay v. Cusimano, 12 Fed. Rep. 305; The Oluf, 19 id. 459. The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

       Affirming 48 St. Rep. 296.


text:
    Henry Abegg et al., Resp’ts, v. John W. Bishop et al., App’lts.

      (Court of Appeals,

      Filed April 24, 1894.)

    1. Assignment for creditors—Preferences.
    In the absence of any intent to hinder, delay or defraud creditors, preference, in excess of the statutory permission, does not make the assignment fraudulent and void.
    2. Same—Effect.
    The restraint of the statute simply limits the effective operation of such preference to the permissible one-third of the assets.
    3. Same—Remedy.
    Such excess, when created outside of the assignment, can only be recovered by an action in aid of the assignment and for the benefit of all the creditors.
    Appeal from order of the general term of the supreme court in the first judicial department, made November 80, 1892, which reversed a judgment infavor of defendants entered upon a decision of the court on trial at special term dismissing the complaint, and ordered a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

      Joseph A. Welch, for app’lt, Tilge; Maurice Rapp, for app’lt, Grasse; Alexander Blumenstiel, for resp'ts.

       Reversing 49 St. Rep. 191.

   Finch, J.

This action was brought to set aside a transfer of accounts by Bishop & Orawford to the firm of Tilge & Co., executed on the 10th of January, 1890, in pursuance of an agreement to that effect made two days earlier; and also to set aside and annul a general assignment executed by the same debtors on the next day. The debt to Tilge & Go. exceeded $15,000, and no question is made over its honest existence or actual amount. These creditors had obtained a judgment by confession in New Jersey, where the debtors had a factory, but nothing was found there upon which execution could be levied, and that remedy proved unavailable to the creditors. The nominal amount of the accounts transferred was nearly six thousand dollars, but they were subject to discounts and abatement, and have yielded only about sixteen hundred dollars to the holders. The general assignment made on January 11th was without preferences; and schedules show debts to the amount of over forty thousand dollars, and a total of assets valued at about fifteen hundred dollars. The assignees of the accounts, the general assignee, and the assignors all testify that -the final assignment was not determined upon, contemplated, or suggested, until after the transfer of the accounts, and the trial court refused a request to find to the contrary. There was no evidence in the case, and it is not argued that there'was any, which tends to prove as a fact an intent to hinder, delay and defraud creditors outside of the bare truth that the transfer of the accounts and the general assignment, taken together as one transaction, show an effort and intent to give to Tilge & Go. a preference for more than one-third of the assets of the insolvent debtors, which is in violation of the act of 1877. The special term dismissed the complaint, but the general term reversed that judgment, holding that the transaction was a trick or device to evade the statute against excessive preferences; that as such violation it was a fraud upon creditors; and that both transfers were void on the supposed state of facts, irrespective of the knowledge or intent of the creditors preferred ; and this doctrine was confidently pressed as too plain for argument, but in ignorance of a decision of this court not then in the reports.

Nevertheless it is explicitly contravened in all its essential elements by the decision referred to. The whole subject was discussed in Central National Bank v. Seligman, 138 N. Y. 441; 53 St. Rep. 14. In that case there was an assignment of accounts to a creditor on the very day of the execution of the assignment, though before such execution. There were judgments confessed to another creditor although not entered until after the general assignment. The attack was made as here upon these preferences and the assignment, all of which were sought to be set aside as fraudulent and void because they worked a preference in excess of the statutory permission. To that we answered that the mere preference in payment of one honest creditor over another was never at common law evidence of a fraudulent intent; that it was lawfhl and permissible until the statute restrained it; that in restraining it to one-third of the assets the act did not stamp as fraudulent a greater preference; that it simply limited its effective operation to the permissible one-third; and that the excess when created outside of the assignment could only be recovered by an action in aid of the assignment and for the benefit of all the civditors. The argument of Andrews, Oh. J., in which we all concurred, covers the whole ground, and need not be in any respect repeated. As in that case the excessive preference made neither the transfers nor the assignments fraudulent, so they fail to effect that result in this. As we refused to set them aside in that case as fraudulent when no other ground than the forbidden excess existed, so also we must refuse in this. As the only remedy in that case upon the then disclosed facts was an action in aid of the assignment to subject the excess to the claims of creditors under that instrument, so that is the only proper remedy in the case at bar upon the facts contained in the record. It follows that the conclusion of the special term was correct and its reversal an error.

The order of the general term should be reversed and the judgment of the special term affirmed, with costs.

All concur.

Ordered accordingly.


author: WRIGHT, J.

text:
    Edward P. Bates, Pl’ff, v. Trustees of Masonic Hall and Asylum Fund et al., Def’ts. Henry W. Millar et al., Pl’ffs v. Same, Def’ts.

      (Supreme Court, Oneida Special Term,

      Filed March 19, 1894.)

    1. Mechanic's lien—Assignment—Certificate.
    Under provision that no payment shall be made until contractor shall produce county clerk’s certificate that there are no unsatisfied liens on the premises, an assignee of the final payment, where the work has been abandoned by the contractor and finished by the owner, cannot recover without producing such certificate.
    3. Same—Subcontractor's lien.
    The abandonment by the contractor does not defeat the subcontractor’s right to a lien, if his failure to complete the work is owing to such abandonment.
    3. Same—Note for claim.
    Taking a note for amount of the claim, as the work progresses, does not preclude the right to a lien.
    4. Same—Completion by owner.
    The owner, in completing the contract, must first exhaust the contract price before he can resort to other moneys in his hands belonging to the contractor.
    5. Same—Limitation.
    Where the amount of the lien is paid into court, in a proceeding to enforce it, a lis pendens is unnecessary.
    Actions to foreclose mechanic’s liens.

      Risley & Robinson and Josiah Perry, for p!ff; D. C. Stoddard and Alex. T. Goodwin, for the trustees; W. <& N. E. Fernán, for Millar & Murray, Cahill Bros., Hugh Evans, John J. Indermile and Hamilton F. Cain; Wilson & Forbes, for Salt Springs Nat. Bank; William M. Ross, receiver, in pro per ; Baldtoin & Ide, for William M. Ross, receiver; Gill & Stillwell, for George H. Mc-Cliesney; Van ÁitJcen & Pitcher, for Roberts & Perry; S M. Lindsley, for Utica Planing Mill; R. J. Fish, for Charles Matthews; M. H. Sexton, for Shaughnessy Bros, and Daniel Sabine; M. F & C. W. Driscoll, for Dickison & Allen and wives ; Coupe Bros.,
      for Ried and others; Ooodelle & Nottingham, for Thomas & James Talbot; A, N Souihworth, for Winston & McEvoy.
   WRIGHT, J.

On December 5,1890, the trustees of the Masonic Hall & Asylum Fund entered into a written contract with the firm of Dickison & Allen, defendants herein, by which the latter agreed to construct and complete said building by May 15, 1892, for $139,500, the last installment, of $28,500, to be paid, “ when the buildings are completely finished and accepted.” It was also agreed “ that no payment shall be made hereunder until the said parties of the second part shall have obtained a certificate from the clerk of Oneida county showing that at the date of such payment no liens or claims have been recorded or filed against said premises or building, which are then unsatisfied of record; and it was further agreed that if the building should not be completed on . May 15, 1892, the contractors should pay $25 as liquidated damages for -each day after that date during which it should remain unfinished, to be deducted from the contract price. On February 14, 1891, before beginning work on the building, the contractors, Dickison A Allen, executed and delivered to the defendant the Salt Springs National Bank of Syracuse, N. Y., an assignment of twenty per cent, of the contract price, to be paid out of the last installment due on the completion and acceptance of the building, as collateral security for the liabilities of Dickison & Allen to the bank then existing, or which might thereafter accrue. Thereafter, Dickison A Allen proceeded with their work until J une 4,1892, when they became insolvent and abandoned the building, and requested the trustees to complete it under the provisions of the contract, which they afterwards did. At the time of said abandonment there remained unpaid of the contract price to become due on the completion of the building, $31,394.39, and there was due to Dickison A Allen for extra work not included in the contract the further sum of $1,672.92, making a total unpaid of $33,067.31. The trustees properly expended, in completing the building $8,478.82, and they are entitled, as damages for the failure of the contractors to complete the building upon the agreed time, to the sum of $800, which makes a total allowed the trustees of $9,278.82. This deducted from the amount unpaid, leaves to be disposed of in these actions $23,788.49, which is less than twenty per cent, of the contract price, mentioned in the said assignment to the bank. Of this account there has been paid into court $21,213.49, and deposited with the Salt Springs National Bank, subject to the order of the court, the balance $2,575. No notice of the assignment to the bank made February 14, 1891, was given the trustees until April 28, 1892, since which time no payments have been made, and none of the lienors had any notice of that assignment until after they had furnished their materials and done their work. On June 4, 1892, Dickison & Allen made a second assignment of said contract to the bank, and also “ all sums and moneys due, or which may become due, for extras, including labor and materials furnished in the erection of said building.” Though this assignment was .absolute in its terms, it was in fact for a further collateral security for indebtedness of Dickison & Allen to the bank, which at the time amounted to $22,920 and some interest, and which, at the commencement of this action, had increased to $32,418,76, for several thousand dollars of which the bank holds other collateralsfrom the wives of Dickison & Allen. Notice of this assignment was served on the trustees June 6, 1892. On May 31, 1892, the defendants Cahill, subcontractors of Dickison & Allen, filed a mechanics’ lien on said building for $1,749.29, which was assigned to the plaintiffs Millar & Murray; and on June 4th, and before the second assignment was delivered to the bank, the Utica Planing Mill filed its lien for $1,091. 89 ; and, after said second assignment was delivered, liens were filed by other parties to these actions, aggregating about $18,000. The bank claims to be entitled to the entire fund by virtue of said assignments. The trustees, by their answer, and each lienor, contend that the lienors are entitled to be first paid; that nothing will become due the bank until it shall produce the certificate of the clerk of Oneida county showing that, in the language o.f the contract, “ no liens or claims have been recorded or filed against said premises or building, which are then unsatisfied of record.” This contention is sound. At the time of the abandonment of the contract by Dickison & Allen there was nothing due them thereon. Nothing could become due except by subsequent acts, which were—First the completion of the contract; and, second, the production of the clerk’s said certificate. The trustees elected to complete the building under that contract, which kept the contract operative, and they possess the right to require the performance of each condition precedent to any payment. The requirement of the certificate was a thoughtful and wise provision in the contract, for the special benefit of the lienors, and of which the bank had knowledge when, it took the assignments. The organization which owns the home is composed of men peculiarly sensitive to equitable obligations and considerations of honor. That unrequited labor or material unpaid for might enter into the construction of that magnificent, monument of Masonic charity would be extremely repugnant to the generous sentiments of the noble fraternity whose gifts formed the fund for their payment. The able and faithful board of trustees understood the danger to the laborers and material men to be apprehended from a possible secret assignment of the contract price bv the contractors, and they undertook to guard themselves against it; they also desired to protect themselves from the annoyance of any legal proceedings respecting any liens ; and they therefore required that the contractors should clear the records from all liens that might be filed, and present proof thereof before demanding payment. The requirement of the certificate was for their mutual benefit, but mainly for that of those who might become lienors under the provisions of the statute, as supplemented by this clause in the contract. To the lienors it was a benefit substantial and vital in its nature but to the trustees the benefit was more of the nature of sentiment, and also of convenience. Had Dickison & Allen completed the contract, they could not have claimed payment for one dollar until they had produced the certificate, if required by the trustees, and the bank is in no superior position ; and now, since the trustees and those lienors who have appeared and established their claims join in requiring that certificate, their liens must be paid Those notices of liens which have been filed by several of the defendants, but have not been proved herein, must be adjudged invalid, and be cancelled. In Murphy v. Bank, 30 Hun, 40, the contract provided in effect, that at the completion of the contract the owner (commissioner of public works) should retain such part of the contract price as might be necessary “ to meet the claims ”of all persons who within ten days after said completion should give the owner written notice of the amount due them, and that such money should be retained until liabilities should be discharged. It was held that the plaintiff, who furnished materials and filed the required notice, was entitled to payment in preference to the bank, to which the contractor assigned the contract prior to the furnishing of the materials; that this “provision was made for the protection of all persons who had done work or furnished materials under the agreementand that under it “the assignee of moneys due, and to grow due, under the contract, took them subject to all equities between the contractor and the parties doing work or furnishing materials under it, or for which, under the terms of the contract, the lienors might enforce their claims against him.” See, also, Mechanics' & Traders' Nat. Bk. v. Mayor, etc., of New York, 58 How. Pr. 207, affirmed in 27 Hun, 467; Mechanics' & Traders' Nat. Bk. v. Winant, 1 N. Y. Supp. 659; 16 St. Rep. 902. It is urged by the bank that these cases fire overruled by Lauer v. Dunn, 115 N. Y. 406 26 St. Rep. 412. The provision in that case was to the effect that, if any liens should exist when a payment became due, such payment should not be payable at the stipulated time. In that case the contractor gave an order on the owner to pay a subcontractor an amount before it became due, and it was held that the order took precedence over subsequent lienors; but there was no provision in that case, as in this one, that the liens shall first be absolutely discharged and the record cleared before a payment shall be made. Since the decision of Lauer v. Dunn, supra, and McCorkle v. Herman, 117 N. Y. 297; 27 St; Rep. 333, the only method of effectual protection of laborers, material men and subcontractors from the schemes of unscrupulous contractors by secret assignments of the contract is through the insertion of such a clause as this one in the contract.

But it is urged by the bank that the trustees, only can exact the certificate, and that the stipulation of settlement as to the damages made at the close of the trial between it and the trustees is a waiver of their requirement of said certificate, and that their answer should be considered as amended in that regard ; but I do not so understand the meaning of that stipulation. The preamble recites the claim by the trustees for $3,375 damages for the failure of the contractors to perform their contract, and the issue raised by the bank that such performance has been “ waived, extended or excused by the trustees,” and that the bank and the trustees. have settled “the said matter, things, and differences existing between them, and at issue in this action.”- This latter clause clearly refers only to what is above specified as in issue. The stipulation further provides that the trustees shall pay to the bank $2,575 which shall be full and complete settlement, adjustment, and compromise of all and every claim and demand of said bank against said trustees, etc., as to said moneys so claimed, and also for all and every claim, matter, or thing relating to said contract, in any way or manner whatever involved in the issues in this action, or otherwise. The latter clause, though somewhat ambiguous, I think is only an amplification of the first clause, and is limited to the claims and demands of the bank against the trustees, and was not intended to embrace any claim of the trustees; and this view is sustained by the fact that following that sentence there is a statement of the particular claim of the trustees against the bank which is settled, viz. that “the sum of $800 shall be kept and retained by the trustees as fixed, settled, adjusted and compromised damages sustained by them for the breach of said contract on the part of the defendants Dickison & Allen.” The stipulation, therefore, does not, in terms or by implication, waive the requirement set up by the trustees that, under the contract, the liens must be paid and discharged of record before anything shall become due the bank. Again, the effect of waiver should not, in any event, be given to the stipulation, for the trustees and lienors joined in urging upon the court, throughout the trial, the force of that requirement in their mutual interests; and a court of equity will not permit an amendment to a pleading when, taking into consideration the interests of all parties to the action, the effect of the amendment would be inequitable, unless, as in a case of pleading an admission, there is clear proof of mistake. Miller v. Moore, 1 E. D. Smith, 739 ; Deyo v. Morss, 74 Hun, 225; 56 St. Rep. 364.

The bank further alleges that the Bates lien of $5,750 is illegal, Because he did not complete his sub-contract under Dickison & Allen. But the cause of his ceasing work was the abandonment by Dickison & Allen of their contract. They could not, therefore, object to his payment, and the bank is in no better position. Besides, he completed the contract under the employment of the trustees after they took charge of the work; and this is also a perfect answer to the bank’s objection. Crouch v. Gutmann, 134 H. Y. 45; 45 St. Rep. 470; Van Clief v. Van Vechten, 130 N. Y. 571; 42 St. Rep. 736. The fact that Bates took promissory notes from the contractors for the amounts due as his work progressed did not affect the nature of his original claim, nor his original right to a lien; and, the notes being due and surrendered at the trial, they do not stand in the way of the enforcement of the lien. Jagger Iron Co. v. Walker, 76 N. Y. 521.

As to the lien of Cahill Bros, of $1,747.29, it may be observed that, since it was filed before the second assignment, which purported to cover the amount due Dickison & Allen for extra work, and since the first assignment did not cover that item, it is wholly outside of any effect of said assignments; and without any question this lien is valid to the amount due the contractors for the extra work, viz. $1,672.92.

It is urged by the bank, and by Mr. Lindsley also, that the law will presume that the trustees, in completing the building, first exhausted the fund due the contractors for extra work before using any part of the contract price for that purpose. That is not correct. Equity requires them to first exhaust the contract price in eompleting the contract, before they resort to other moneys in their hands belonging to the contractors. Again, the contract price is the fund which is mentioned in the contract as applicable for that purpose by the trustees.

It is claimed on behalf of Price and others, laborers, that they are entitled to preference over the liens of contractors or subcontractors, without regard to the date of filing; but, it not being alleged or proved that they worked for daily or weekly wages, they are not so entitled. Laws 1887, c. 420.

As to the Talbot lien of $3,500, the objection is made by the bank that it is invalid because the claimant had not fully completed his contract before Dickison & Allen abandoned the building. But he did not willfully abandon his contract, nor refuse to complete it; he only suspended work “until he saw where his pay was coming from ;” and, he having completed it under the direction of the trustees, who in the completion of the building are regarded in the law as the agents of Dickison & Allen in carrying out their contract, the objection is not forceful. Van Clief v. Van Vechten, supra. The bank further objects to this lien on the ground that it was not filed within ninety days’ statutory time; that the last work on the contract was performed in January, 1892, and the lien not filed until June, 1892; but I find from the conflicting evidence that Talbot’s last work under Dickison & Allen was done in May, 1892.

The bank further urges that, there being no proof of the filing of a Us pendens on the behalf of any party, and since more than one year has expired since the filing of the various notices of lien, they have expired, and these actions cannot be maintained. Laws 1885, c. 342, § 6, and Danziger v. Simonson, 116 N. Y. 329 ; 26 St. Rep. 708, are cited to sustain that position. But, the trustees having paid into court the entire amount which remains unpaid, those objections do not apply to these cases or liens. “ The lien is shifted to the fund, and the lis pendens becomes unnecessary.” Sheffield v. Robinson, 73 Hun, 173; 57 St Rep. 146; Ward v. Kilpatrick, 85 N. Y. 413.

A multitude of other questions are raised by the various parties, but it is unnecessary to discuss them. The lienors are entitled to payment in the order of the filing of their liens, and the plaintiff Bates, and Millar & Murray as defendants in the Bates action, are entitled to their taxable costs and disbursements, and each lienor (where several appear by one attorney they being regarded as one) is entitled to a trial fee and disbursements, to be paid out of the fund, and the bank is entitled to the remainder, and all the liens must be canceled from record. Findings in one set, covering all the claims, may be prepared accordingly by the attorneys for the plaintiffs in these actions.