text:
    MARGARET RAWLINS, Respondent, v. PETER VIDVARD, Appellant.

      Civil damage act — exemrpla/ry damages cannot be allowed unless aggravating circumstances, with which the defendant is connected, be shown.

    Where rr action is brought against the owner of premises under tbe civil damage act, by a wife to recover damages for injuries sustained by her husband by reason of the sale to him of intoxicating liquors by the defendant’s tenant, exemplary damages cannot be awarded by the jury without proof of aggravating circumstances with which the defendant is connected.
    Exemplary damages cannot be awarded in actions brought under the said act unless it be shown that the defendant acted from bad motives, as, for instance, where it is shown, in an action against one who sold the liquor, that he sold it in violation of law, or to a person whom he knew to be far gone in the habit of intemperance, or who was already obviously under the influence of liquor, or who habitually squandered in dissipation the wages with which he should support his family, or where, in an action against the owner of the premises, it is shown that he leased them to a tenant knowing that (he kept a disorderly place or sold without a license, or to minors or habitual drunkards. (Per Yann, .1.)
    Appeal by the defendant from a judgment, entered against him upon a verdict rendered at the Oneida Circuit, in January, 1882, and from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.
    This action was brought under the statute to suppress intemperance, pauperism and crime, known as the “ Civil Damage Act.”
    On the 27th of September, 1880, the defendant owned certain premises in the town of 'WTiitestown, county of Oneida, known as the “ Yorkville House,” which he had leased to one Nellie M. Briggs, knowing that she intended to use them for the purpose of keeping a hotel in which intoxicating liquors would be sold. The plaintiff claims, and the evidence in her behalf tended to show, that on the day last named, her husband, Martin J. Rawlins, became intoxicated; that such intoxication was caused wholly or in part by liquors sold to him by Mrs. Briggs or her agent, and that he was thereby rendered -incapable of taking care of himself and fell from the loft of a barn situated on said premises, broke his arm and sustained other injuries.
    The defendant claimed, and the evidence in his behalf tended to show, that on the occasion in question no liquors had been furnished to said Rawlins by Mrs. Briggs or at said hotel, and that he became intoxicated on what he drank elsewhere.
    It was not disputed that the plaintiff was dependent on her husband’s labor for support, and that he was prevented by these injuries from working from the date of the accident until January 20,1881. He was a laboring man, without any property, and earned from one dollar and twenty cents to one dollar and 'thirty-five cents per day. His family consisted of the plaintiff, two children aged respectively four and ten years, and himself. He was not in the habit of drinking to excess, but did occasionally, or, as -stated by the witnesses, once or twice a year. He testified that he drank one glass of beer at another hotel early on the day in question, and before he drank at the Yorkville House, and would not swear that he did not drink two. The jury found a verdict for the plaintiff for $150.

      S. J. Barrows, for the appellant.

      L. E. Croodier, for the respondent.
   Vann, J.:

Upon the trial of this action the court charged the jury that the plaintiff, if her case was made out, might recover exemplary damages, and refused to charge, as requested by defendant’s counsel, that the plaintiff’s right of action, if she had one at all, was limited to her actual damages, and that she was not entitled to exemplary damages. The defendant excepted to the charge as made, and to the refusal to charge as requested. The verdict of the jury in favor of the plaintiff exceeded the amount of the actual damages as proved. (Franklin v. Schermerhorn, 8 Hun, 112.) According to the evidence, the only connection of the defendant with the case was that he owned the premises where the liquor, alleged to have caused the intoxication of plaintiff's husband, was sold, and that he let them to be used as a hotel, knowing that intoxicating liquors were to be sold therein. There was no proof connecting the defendant with any aggravating circumstance. There was evidence tending to show that the barkeeper of the tenant sold to the husband of the plaintiff three drinks of whisky at short intervals; but it did not appear that he was at all intoxicated until after he had swallowed the last of these drinks. The exceptions, therefore, present the question whether, in n case brought under the civil damage act against the owner of the premises, the plaintiff may, in the discretion of the jury, recover exemplary damages, without proof of aggravating circumstances with which the owner is connected.

The statute provides that “ every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person or persons who shall, by selling or giving away intoxicating liquors, caused the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable, severally or jointly, with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages.” (Laws of 1873, chap. 616, § 1.)

What did the legislature mean when it imposed this liability: “ for all damages sustained and for exemplary damages ? ” Did it mean to commit to the arbitrary discretion of a jury the poyver of awarding exemplary damages without evidence or law to guide them? or, did it mean that the damages sustained^ when proved according to the common law, should be recovered; and also' exemplary damages, when proved in like manner? In other words, did it mean to create a new cause of action, leaving the damages to be measured by the principles of the common law ? or to create not only a new cause of action, but also a new measure of damages ?

All statutes are to be construed with reference to the principles of the common law in force at the time of their passage, and all words having a well known and definite meaning at common law are presumed to be used in tbe same sense when they appear in a statute. (Dwarris on Statutes, 564-5 ; Sedgwick on Construction of Stat. and Const. Law, 221; The U. S. v. Jones, 3 Wash. C. C. R., 209.) The words “exemplary damages” are well known to the common law, and are thus defined by common-law writers, editors and judges: “ Damages allowed as a punishment for torts committed with fraud, actual malice, or deliberate Violence or oppression.” (Bouvier.) “ Damages given by way of punishment or in common parlance ‘ smart money.’ ” (Burrill.) “ Damages on an unsparing scale, given in respect of tortious acts committed through malice or other circumstances of aggravation.” (Rapalje & Lawrence.) Damages given not merely as pecuniary compensation for the loss actually sustained by the plaintiff, but likewise as a kind of punishment to the defendant, with the view of preventing similar wrongs in the future.” (Brown’s Com. Law, 855.) “Damages increasing compensation for wrongs done with bad motives.” (1 Sutherland on Damages, 716.) “ Damages where fraud, malice or oppression intervenes.” (1 Sedgwick oh Damages [7th ed.], 53.) “ For torts, under circumstances of great aggravation, the jury, in addition to such actual damages as they may find the injured party entitled to, * * * may farther allow, for an example to others and a punishment of tire wrong-doer, exemplary or punitive damages.” (Field on Law of Damages, 28.) “ If the defendant in committing the wrong complained of acted recklessly or willfully and maliciously with a design to oppress and injure the plaintiff, the jury in fixing the damages may disregard the rule of compensation, and beyond that, may, as a punishment to the defendant, and as a protection to society against a violation of personal rights and social order award such additional damages as in their discretion they may deem proper.” (Voltz v. Blackman, 64 N. Y., 440. 444.) “Damages by way of compensation for malicious injuries.” (Bixby v. Dunlap, 56 N. H., 456, 465.) “ In actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages, upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff.” (Day v. Woodworth, 13 How. [U. S.], 371; see, also, Huckle v. Money, 2 Wils., 205; King v. Root, 4 Wend., 118; Burr v. Burr, 7 Hill, 207.)

From these definitions it is apparent that exemplary damages at common law imply malice, bad motives or evil intent on the part of the person against whom they are awarded. They are allowed not to compensate the one who suffers the wrong, but to punish the one who inflicts the wrong on account of his evil design, and as an .example to others.

If the legislature, in enacting the statute in question, instead of using the words “ exemplary damages,” had used the common law definition of those words, they would have expressed precisely what-the statute means now. (Davis v. Standish, 26 Hun, 608, 615.) When thus construed it does not mean that the jury may award exemplary damages in any case, but only when the defendant has acted from bad motives. If, for instance, in an action against the one who sold the liquor that caused intoxication, from which actual damages were sustained, it appeared that he sold in violation of law or to a person whom he knew to be far gone in the habit of intemperance, or who was already obviously under the influence of liquor, or who habitually squandered in dissipation the wages with which he should support his family, the jury might well infer that he acted from bad motives, and award exemplary damages. Also in an action against the owner of the premises, if it appeared that he leased them to a tenant, knowing that he kept a disorderly place, or sold without a license, or to minors or habitual drunkards, there would be a basis upon which the jury might allow exemplary •damages against him.'

But in this case there is no evidence from which the jury could infer that the defendant acted from bad motives. He leased his premises for a lawful purpose. (Jackson v. Brookins, 5 Hun, 530, 535.) His tenant had a license, granted under the laws of the State, and so far as appears kept an orderly and respectable hotel. No aggravating circumstance was shown with which the defendant was directly or indirectly connected. If the sale of three glasses of whisky to the same person within a few minutes would authorize an award of exemplary damages in a case against a tenant, it would not in a case against the landlord without further proof. The person against whom exemplary damages are allowed must be- connected with and in some way respionsible for the aggravating circumstances that authorize the award. As said by the court in Davis v. Standish (supra), “the statute has not said in what eases punitive damages may be given, and we must therefore look to the common law,’* and, as already appears, such damages are allowed at common law only to punish a willful wrong-doer.

In Franklin v. Schermerhorn (8 Hun, 112) it appeared that the plaintiff’s husband was injured and lost a sum of money in consequence of the intoxication, and it was held that the seller was liable only for the actual damages, and that exemplary damages should only be given when there are circumstances of abuse or aggrava- . tion proved on the part of the vendor of the liquor.

In Neu v. McKechnie (95 N. Y., 632).the Court of Appeals held that where the defendant sold the liquor causing the intoxicacation without a license, it was proper to submit the question of exemplary damages to the jury. The decision is placed expressly upon the ground that there was evidence upon which exemplary damages might be awarded. Under similar statutes the courts of Michigan, Nebraska and Illinois require circumstances of abuse or aggravation to be proved before exemplary damages are allowed even against the seller.

In Kreiter v. Nichols (28 Mich., 496-9) the court held that exemplary damages should not be awarded unless the act of giving or selling the intoxicating drinks was willful, wanton, reckless or otherwise deserving of punishment beyond what the requirement of mere compensation would impose.

In Ganssley v. Perkins (30 Mich., 492-5) the court said: “ The actual damages should be as nearly commensurate with the actual injuries as the nature of the case will permit; and exemplary damages-should be-given in those cases, and only in those cases, where the plaintiff has some personal right to complain of a wanton and willful wrong, which the wrong-doer, when he committed it, must be regarded as having committed against the plaintiff herself, in' spite of the injury he must have known she was likely to suffer by it.”

In Roose v. Perkins (9 Neb., 304, 315) it does not appear whether there was any proof of aggravating circumstances or not, but the refusal of the trial court to instruct the'jury” that exemplary damages could not be recovered, was held error.

In Bates v. Davis (76 Ill., 222) the judgment was reversed solely because the trial court had allowed the ' jury to award exemplary damages.

In Hackett v. Smelsley (77 Ill., 109) exemplary damages were allowed, but the evidence tended to show that the defendants sold to an habitual drunkard.

The Supreme Court of Ohio, under a statute creating a right of action “ against any person who shall by selling intoxicating liquors’ contrary to this act have caused the intoxication, etc., * * * for-all damages actually sustained, as well as exemplary damages,” held that the jury might assess exemplary damages, without proof of' actual malice or other special circumstances of aggravation. (Schneider v. Hosier, 21 Ohio, 98, decided under the act of May 1, 1854, S. & C., 1432.)

Where the sale is unlawful, bad motives are to be inferred, and in such a case the legislature might well have intended to allow exemplary damages as a punishment to the defendant and a protection to society, so that Schneider v. Hosier (supra) is not inconsistent with the other cases cited.

No other case to which our attention has been called sanctions the recovery of exemplary damages without proof of aggravating circumstances. We think that the charge as given, and that the refusal to charge as requested was erroneous, and that the judgment and order appealed from should be reversed’ and a new trial granted, with costs to abide event.

Hardin, P. J., and Follett, J., concurred.

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


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    THOMAS HOUGHTON, Appellant, v. HANNAH HOUGHTON and Others, Respondents.

      Votunta/ry conveyance in expectation of death — when the grantor may revoke it although no power of revocation is resw'ved.

    This action was brought to have a conveyance o£ certain real estate from the plaintiff to one Motsiff, and from Motsiff to the plaintiff’s wife, set aside. The complaint alleged that the plaintiff, being very sick and not expecting to live, and in view of his death was induced and persuaded to execute the deed, in order that the property might be conveyed to his wife; that there was no consideration for it; that the matter was talked over between the plaintiff and his wife, and that she said that she believed he was in his last sickness and could not long survive, and that by deeding the property to her it would save the expense of an administration upon his estate and that he should not want for anything for his comfort as long as lie lived; that he had demanded a reconveyance of the property, which had been refused, and that he had been ill-treated by his wife and her grantee, his son.

      Held, that although th'e gift could not be treated as one made mortis causa, and therefore revocable, for the reason that real estate cannot be so given, yet a court of equity had power to set aside the conveyance as made under a mutual mistake of fact, that is, under the erroneous expectation of the plaintiff’s speedy death, and under a mistaken belief that the plaintiff could revoke the gift at any time during his life.
    Appeal from a judgment, entered upon the decision of the court, on trial at the Oneida Special Term, directing the dismissal of the complaint as not stating facts sufficient to constitute a cause of action.
    The complaint stated that the defendant Hannah Houghton was the wife of plaintiff, they having intermarried about 1844, and that the defendant John Houghton was their son; that on the 15th May, 1874, the plaintiff was the owner in fee of about seventy-two acres (describing it), in the town of Westmoreland, Oneida county, and on that day, “ being at the time very sick and not expecting to live, and in view of death; was induced and persuaded to execute, acknowledge and deliver to the defendant Motsiff a deed of the said several pieces of land heretofore described, so that he might deed the same to the defendant Hannah Houghton; that it was in fact all for the benefit of said defendant Hannah Houghton ; that there was no consideration for said conveyance to the defendant Motsiff passing between tbe parties; that it was done for the purpose of passing the title to said property to the defendant Hannah Houghton; ” that on the same day Motsiff executed and delivered to the defendant Hannah a deed of the said premises, the consideration expressed in each of said deeds being one dollar; that the plaintiff deeded the said property to his wife “ for no other consideration than that he believed he was about to die; that the matter was talked over between himself and the defendant Hannah Houghtqn at the time aforesaid; that she told plaintiff that she believed he was in his last sickness and could not long survive, and that by deeding the property to her it would save the expense of an administration upon his estate; that Fanny Houghton, a daughter of said plaintiff and defendant, urged the matter; that said defendant Hannah Houghton said that he should not want for anything for his comfort as long as he lived, and plaintiff, as' aforesaid alleged, in view of death and believing that he was in his last sickness, and for no other consideration whatever, deeded said property before described to his said wife ; ” that in May, 1876, the defendant Hannah deeded the property to the defendant John Houghton without consideration, and that John had full knowledge of the circumstances under which plaintiff gave the deed, and that plaintiff could revoke the same at any time before his decease; that the defendants Hannah and John are now living on the property and have been since May, 1874, and receiving the avails thereof; that the plaintiff has demanded of each of them a reconveyance, and notified them that he revoked the said conveyance to his wife and desired the property back, and they each refuse to reeonvey or give him possession; that he has received board on the farm a part of the time, but of poor quality and insufficient, and has been ill-treated in divers particulars by said Hannah and John. Judgment is demanded declaring the deeds null and void or directing a reconveyance, and for an accounting and for general relief.
    The defendants Hannah and John Houghton answered upon the merits.

      W. £. Scripture, for the appellant

      A. Cóburn, for the respondents.
   Merwin, J.:

The question before us is whether, assuming all the facts stated in the complaint to be true, the plaintiff is entitled in a court of equity to any relief.

One theory presented on the part of the plaintiff is that the conveyance to the wife through the medium of Motsiff was in the nature of a gift mortis causa, and therefore it was revoked, or revocable, upon the plaintiff’s recovery from his illness (2 Kent, 444), or, as it is said of such gifts in Grymes v. Hone (49 N. Y., 20), was until death subject to his personal revocation. This theory is upon the assumption that real estate may be the subject of such gifts.- That assumption is not warranted by legal authority. The authorities are in fact all the other way; rather, however, by way of statement of what the law is than by any direct adjudication where the question was up, except .the case of Meach v. Meach (24 Vt., 591). There it was held that a deed of all his real estate by the husband directly to the wife in prospect of death, which soon occurred, could not be upheld as a gift mortis causa, as that applied only to personal property.

Judge Redeield, in that case, says: “We can entertain no doubt that had the grantor recovered his health, and the grantee by her friends claimed to hold the property against him as a gift, a court of equity would have decreed a complete restitution upon the ground that the contract, as a present operative contract, was made under a material misapprehension of the important facts, the real consideration for the contract having in fact altogether failed.”

This remark of Judge Redfield was obiter, and still it presented the opinion of an eminent judge, and it is cited on the part of the plaintiff as indicating another ground or theory upon which the deed in question should be set aside. In the Meach case the deed was directly to the wife, and for that reason under the Yermont law was void at law, but sustainable in equity in a proper case. In Forshaw v. Welsby (30 Beavan, 243), a voluntary settlement on his family by a person in extremis, and not containing a power of revocation, was, upon the application of the settler upon his recovery, set aside upon the ground that it was executed in expectation of his immediate death, but not with the intention that it should be operative in case of his recovery, it being expressly stated by the court that there was no undue influence or improper conduct on the part of the family. In Wallaston v. Tribe (L. R., 9 Eq., 44), it was held that a voluntary gift of real estate by deed, not subject to a power of revocation, but not meant to be irrevocable, may be set aside on application of the donor. There was no element of fraud or undue influence.

There are many English cases on the subject of voluntary settlements of real estate where there was no power of revocation. The absence of this is deemed a suspicious circumstance, and in such cases the rule seems to be that very slight evidence of mistake, misapprehension or misunderstanding on the part of a settlor will be laid hold of in a court of equity to set aside the deed. (1 Perry on Trusts [2d ed.], 96, note 2, and cases cited.) In Garnsey v. Mundy (24 N. J. Eq. [9 C. E. Greene], 243, 246) the rule is laid down by the chancellor that equity will set aside the settlement on the application of the settlor where it appears that he did not intend to mate it irrevocable, or where the settlement would be unreasonable or improvident for the lack of a provision for' revocation.

The general rule is that an act done or contract made under a mistake .or ignorance of a material fact is voidable and relievable in equity (1 Story Eq., § 140), and an action lies for its rescission (Smith v. Mackin, 4 Lans., 41), although in general it cannot be reformed unless the mistake is mutual.

This principle includes executed as well as executory contracts (Story’s Eq., § 159), and for the purpose of determining upon such mistake parol evidence is in equity admissible to qualify, correct or defeat the terms ol written instruments. (2 Story’s Eq., § 1531; 2 Whart. Ev., § 1054.) The authorities cited on the part of the defendant, on the proposition that the plaintiff cannot deny the consideration stated in the deed, do not apply to sxich cases. What will constitute a material fact, a mistake of which will furnish a basis for relief in equity, depends largely upon the circumstances of each particular case. Judge Story says (sec. 141) that it must be essential to the character of the act or contract sought to be set aside and an efficient cause of its concoction.

In Bispham’s Equity, 193, it is said the mistake may consist in the belief in the present existence of a thing material to ther transaction which does not exist.

Coming now to the ease in hand here is a complaint in which it is alleged that the plaintiff while very sick, in view of death and believing that he was in his last sickness, and for no other consideration whatever, made to his wife a conveyance of apparently all his property; that the matter was talked over between them, the wife telling the plaintiff that she believed he was in his last sickness and could not long survive, and' that by deeding the property to her the expense of an administration upon his estate would be saved. No fraud or undue influence is in terms alleged, but It is stated generally that the plaintiff was induced and persuaded to-give the deed, and that the wife told the plaintiff that he should not want for anything for his comfort as long as he lived. According to these allegations it is very apparent that the expectation of speedy death was the mobt material circumstance in'the transaction, and that not only the plaintiff, but his wife also, supposed that plaintiff’s sickness was such that death would speedily result,'and both acting on that belief the deed was given: In this both were mistaken, and the wife is now, according to the complaint, seeking to take an unconscionable advantage of a mistake that she not only participated in, but encouraged. This would present a basis for relief on the ground of mutual mistake.

It is also fairly inferable, from the allegations of the complaint, that the plaintiff did not intend to make his deed irrevocable except in case of his death, and that would furnish a basis for the action on the grounds recognized in -the English cases above referred to, and the New Jersey case.

We are of the opinion that upon the case presented by the complaint the plaintiff was entitled to relief, that therefore a cause of action was stated, and the complaint was improperly dismissed at the trial.

The judgment should be reversed and a new trial granted, costs to abide event.

. Present — Hardin, P. J., and Merwin, J.; Follett, J., not sitting.

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


text:
    In the Matter of the Final Accounting of KENDRICK E. MORGAN, as Assignee of FONDA & CLARK. In re Claim of SCHOELLKOPF & MATTHEWS.

      County Gourt — jurisdiction of, over proceedings of cm assignee for the benefit of creditors.

    A firm having made a general assignment, containing preferences for the benefit of certain creditors, the assignee qualified and thereafter paid to a creditor in the eighth class the amount of his debt, although the funds were insufficient to pay the creditor of the seventh class. At the time this payment was made the validity of the .claim of the creditor of the seventh class was disputed, but it was affirmed by the order made upon the accounting of the assignee, and he was thereby directed to pay the balance in his hands upon the said claim. Upon this accounting the payment made to the creditor of the eighth class was not referred to, and the real balance in the hands of the assignee was in fact less than the apparent balance, by the amount of this payment. Upon this fact being subsequently discovered, the surety upon the assignee’s bond and the creditor of the seventh class applied by petition to the County Court, and procured from it, upon the return of a citation, a judgment directing the creditor of the eighth class to return the amount of the said payment to the assignee:

      Held, that the County Court had jurisdiction to entertain the petition and render the judgment.
    Appeal from a judgment of the County Court of Herkimer county.
    On the 18th day of February, 1881, the firm of Fonda & Clark,, of Little Falls, N. Y., made a geijeral assignment, containing preferences, to Kendrick E. Morgan for the benefit of creditors. The assignee accepted the trust and duly executed the necessary bond with George A. Hardin and William Clark as sureties. The assignee converted the assets of said firm into money, and on the 4th day of March, 1881, proceeded to distribute said trust funds among the creditors. The assignee, inadvertently and through a mistake, paid to Sehoellkojpf & Matthews, of Buffalo, N. Y., appellants, who were in the eighth class, the sum of $906.25 of the said trust funds, contrary to the direction and intent of the said assignment. The assignee subsequently filed his account and gave due-notice to the creditors of said Fonda & Clark, and an accounting was had before the county judge' of Herkimer county. On said .accounting the National Herkimer County Bank established its claim against Fonda & Clark upon certain notes held by it, amounting to $2,865.45, which said claim was directed by the assignment to-be paid in the seventh class of preferred creditors, and prior to the said claim of Messrs. Schoellkopf & Matthews. On said accounting a balance of $1,113.30 was found to be in the assignee’s hands, which did not credit him with the payment of $906.25 to Messrs. Schoellkopf & Matthews, but the assignee in fact had only the difference between said $1,113.30 and $906.25 paid Schoellkopf & Matthews as aforesaid. A decree was made by the County Court ■directing the assignee to pay said sum of $1,113.30, the balance of the trust funds, to the National Herkimer County Bank. The said bank had no knowledge of the payment to Schoellkopf & Matthews until after the aforesaid decree was entered. Before the account was filed notice of the mistake was given and a demand was made upon Schoellkopf & Matthews by the assignee for the return of said $906.25, and they refused to return it. An order and citation was issued out of the Herkimer County Court (upon the petition of George A. Hardin, in behalf of said National Herkimer ■County Bank creditor, and himself as surety) directing said Schoellkopf & Matthews to show cause before that court on the 15th day of May, 1882, why the money and trust funds to the .amount of $906.25, belonging to the assigned estate of Fonda & Clark should not be returned to the assignee to be by him distributed. according to the terms of-the assignment. The proceedings on the final accounting were duly continued to the said fifteenth day of May.
    The citation \was personally served on Schoellkopf & Matthews. They appeared specially on the return day of the citation by their attorneys, who filed written objections to the jurisdiction of the court. A trial was had in the matter of the final accounting, and also on the petition of said Harden, before the court, and a judgment in both matters was subsequently entered May twenty-third in the clerk’s office of Herkimer county adjudging that Schoellkopf & Matthews had no legal title to the $906.25 received by them March 4, 1882, and that the legal and equitable title to such money was in the National Herkimer County Bankj providing, among other things, that K, E. Morgan, as assignee of Fonda & Clark, recover of Schoellkopf & Matthews the sum of $973.70, the amount of said trust funds paid them by mistake as aforesaid, with interest, with thirty dollars and twenty-five cents costs and disbursements, and from that judgment this appeal is taken by Schoellkopf & Matthews.

      Day <& Homer for the appellants, Schoellkopf & Matthews.

      Kendriek E. Morgam,, respondent in person.

      A. M. Mills, for George A. Hardin, petitioner, and the National Herkimer Oounty Bank, respondent.
   Merwin, J.:

Under the statute (chap. 166 of 1877, § 13), the surety is recog- • nized as a party in interest. This is for some purpose, presumably for the purpose of enabling him to protect his rights and also that he may be bound by the decree. He has the right to apply for an accounting. (Sec. 11.) This carries with it the idea that he has the right to have the estate distributed to whom it belongs. Schoellkopf & Matthews were creditors and were preferred. By accepting payment under the assignment they became parties to it. Under the statute they were interested in the fund, and, as such, entitled to notice of the accounting. They were in fact notified. The statute permitted further citations. (Sec. 20, sub. 7.) The Herkimer County Bank was .also entitled to notice and was notified. So that we have a proceeding pending in the County Court in which there were as parties, legally among others, the assignee, the surety, the creditors Matthews & Schoellkopf, and the creditor The Herkimer County Bank. These are all the parties interested in this controversy.

Under the statute (§ 25), this proceeding was in a court of general jurisdiction. It had by the terms of the statute full jurisdiction to do all and every act relating to. the assigned estate, the assignees, .assignors and creditors, and jurisdiction is presumed to exist unless the contrary be shown. It could exercise the powers of a court of ■equity in reference to the trust and any matters involved therein.

. This broad language seems to place the County Court in a position •to do all that any court could do with the parties and subject-matter legally before it. This power is not dependent on whether ■an action is brought. The statute recognizes the proceeding by petition and citation. In 2 Barbour’s Chancery'Practice, 578, the rule is laid down, that petition may be presented in a matter over which the court has jurisdiction under some act of the legislature or other special authority. That rule applies here. The statute authorizes a trial by jury.

An implied trust exists where there is a claim which may be directly enforced at law against one party, but to the due discharge of which another party is ultimately liable, and in such a case a court of equity treats it as a trust by the party ultimately liable which may be directly enforced in favor of the party ultimately entitled to the benefit of it. (2 Story’s Eq. § 1250.)

A creditor of an estate, when the executor has by mistake paid legatees or distributees before a discharge of all the debts, has a. clear right in equity to follow the assets of the testator into their hands as a trust fund for the payment of his debt. (Id., § 1251.) Being ultimately responsiblé to pay back to the executor, if he should be compelled to pay, they, may be made immediately liable to the creditor in equity. (Same section.) The creditor is not compelled to resort to his legal remedy against the executor. (Marshall, c. J., in Riddle v. Mandeville, 5 Cranch., 330.) If as between the executor and the party over paid, the executor has no right to recover back, then in such case it has been'held that the party seeking to follow the fund must first exhaust the executor. (Orr v. Kaines, 2 Ves. Sen., 194.) In Peckham v. Van Wagenen (83 N. Y., 40, 45), the right of the prior creditor, his debt being-established, and the fund set apart for him by the preference in the assignment, to follow the fund into the hands of a party not entitled to receive it is recognized. The power to give entire relief in one-suit was recognized in Wheeler v. Perry (18 N. H., 307-314), and Hood v. Clapham (19 Beav., 90), the proper parties being before the court. The theory of the present statute is in the same direction. It confers power to do any and every act in relation to the assigned estate. Part of the assigned estate was in the hands of Schoellkopf & Matthews and received by them as such. It was received by the cheek of the assignee as such. No question is raised about the identity.

Under the assignment, the Herkimer County Bank, had an equitable lien on the assets in the hands of the assignee. This lien the-surety had the right to have enforced for his benefit. In a proper case a surety has the right, after the debt is due, to compel the ■creditor to coi’ect. (Decolyar on Principal and Surety, 324; Hayes v. Ward, 4 Johns. Ch., 132; 5 Wait [A. & D.], 195, and cases cited.)

The County Court being deemed to be a court of general jurisdiction, had power to render a personal judgment. No question is made about the propriety of the order or decree, if there was jurisdiction in the County Court.

The foregoing considerations lead to the conclusion that, inasmuch as all the parties to this controversy were legally before the County Court in relation to a subject matter properly before it, it had under the broad language of the statute jurisdiction to make the decree appealed from, and that therefore the decree should be affirmed, with costs.

Follett, J., concurs; Hardin, P. J., not sitting.

Decree of Herkimer County Court affirmed, with costs against the appellants.


text:
    JOHN P. VIDVARD and PETER VIDVARD, Respondents, v. ISAAC P. POWERS and AMOS K. HEDDEN, Appellants.

      Evidence — when the declarations of a party are inadmissible as against his assignee for the benefit of creditors.

    In an action by a vendor of goods against a purchaser, and one to whom the latter has made a general assignment for the benefit of creditors, to recover the goods upon the ground that at the time of the sale the purchaser was insolvent and bought the goods with an intent not to pay for them, declarations of the purchaser showing that he knew he was then insolvent, made to another creditor after the ordering of the plaintiffs’ goods and before their delivery, and prior to the making of the assignment, are inadmissible as against the assignee.
    Appeal from a judgment in favor of the plaintiffs, entered on the report of a referee in an action for the recovery of possession of personal property.

      The complaint alleged that on or about December 18, 1880, at Ellisburgh, Jefferson county, the defendants wrongfully became possessed of and detained from the plain tiffs^certain goods, the property of the plaintiffs, and of which they were entitled to the immediate possession, of the value ol $409.11; that defendants after demand refused to deliver possession; that the defendant Hedden on or about November 26, 1880, being insolvent obtained the property from the plaintiffs on credit, fraudulently, with intent not to pay for it, and on the 14th December, 1880, made a general assignment for the benefit of creditors to the other defendant Powers.

      Scmniial Smith, for the appellants.

      S. J. Barrows, for the respondents.
   Merwin, J.:

The issue in this case was whether the property had been fraudulently obtained from the plaintiffs by the defendant Hedden. Fraud was sought to be established on two theories; one based on representations in fact made by the agent of Hedden at the time the goods were ordered, and the other on the idea that Hedden when he received the goods was insolvent and did not intend to pay for them. Hedden had a store at Ellisburgh and also one at Lacona. The former was in charge of a clerk, or agent, named Delapp, who on the 25th and 26th November, 1880, ordered at Utica the goods in question. They were shipped at Utica on November twenty-sixth, being directed to Hedden, at Ellis-burgh, and were received by Hedden on the first or second of December. On the 27th November, 1880, Mr. Golden, a creditor of Hedden, had a talk with him at his store at Lacona in regard to his financial standing and business. This conversation the plaintiff offered to prove by Mr. Golden, and it was objected to by the defendants as incompetent and immaterial; that it had no relation to the matters in suit, nor for securing credit; that it was immaterial if designed to affect defendant Powers; that the witness was not acting for plaintiffs, and the conversation was not communicated to them. The objections were overruled and defendants excepted, and the witness gate the conversation. It tended to show that Hedden was insolvent and knew it, and in a contingency contemplated an assignment. The defendant Powers afterward made- a motion to strike this out, on the ground that the declarations of Hedden were incompetent and immaterial as against him, and this motion was denied and exception taken. The plaintiffs offered evidence of the same interview from the witness Dunmore, which was received over the same objection, the point being specially taken that the declarations of the assignor were inadmissible as against the assignee. This evidence was not a part of the transaction with plaintiffs, and it was not offered or received on that basis.' It does not show a contemporaneous transaction, which would be admissible on the question of the intent of Hedden in the purchase of plaintiffs. The ruling is not sought to be upheld! on that basis. So that the question is whether the declarations simply of the assignor before the assignment, and not part of the res gestee, are competent against the assignee. It was held that they were in Bullis v. Montgomery (3 Lans., 255), but in same case in Court of Appeals it was held to the contrary. (50 N Y., 352.) In that case it was said there was no such community of interest”between the assignor and assignee for benefit of creditors as would make such declarations competent. The action was brought by the assignees to recover possession of certain property of the assignor, and the defense was fraud of the assignor in the purchase. The declarations offered were made shortly before the purchase, and were that he intended to cheat the sellers out of the property. .

In Von Sachs v. Kretz (72 N. Y., 548) it was held that the declarations of a bankrupt, made before the bankruptcy, are admissible as evidence against his assignee to establish a claim against the estate. The case of Bullis v. Montgomery is not overruled, but distinguished, on the idea that there the declarations were made before any right or interest in the property in controversy was acquired by the assignor. In Truax v. Slater (86 N. Y., 630) the general doctrine is laid down by Judge Earl, that the mere declarations of an assignor of a chose of action forming no part of the res gestes are not competent to prejudice the title of his assignee, whether the assignee be one for value or merely a trustee for creditors, and whether such declarations be antecedent or subsequent to the assignment. Within this rule and the doctrine of the Bullí» case, which has not been overruled, the declarations of Hedden were erroneously admitted as against tbe defendant Powers. It is very clear that they had a material influence in tbe decision of tbe case. Tbe fact that Hedden is a party defendant does not for that reason make tbe evidence competent against Powers, no conspiracy being shown or alleged. Powers is tbe real party defendant, and tbe case against him must be made out by evidence good as against him.

Other questions are raised which it is not important now to consider. For error in receiving tbe declarations of Hedden, there must be a new trial.

The judgment should be reversed and new trial granted before another referee, costs to abide event.

Hardin, P. J., and Follett, J., concurred.

Judgment reversed and new trial ordered before another referee, with costs to abide tbe event.


text:
    JOHN N. GRAVILLE, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Evidence — when the records of a corporation are inadmissible in its fa/vor as against stra/ngers.

    Upon the trial oí an action against the New York Central and Hudson River Railroad Company to recover damages for its alleged negligence, the defendant desired to show what freight trains passed Rome, going east, between eleven and twelve o’clock p. m. on a certain day. A station-master at Rome observes the time at which each train passes, and gives the time and the number of the engine to the telegraph operator at that place, who telegraphs these facts to Little Falls, where they are entered uponjwhat is called by the defendant its train sheet. This train sheet was offered in evidence without calling the station-master or telegraph operator at Rome to testify as to the truthfulness of the report made by them, and without in any way accounting for the defendant’s failure so to call them.

      Meld, that the evidence was properly rejected as inadmissible as against the plaintiff.
    Appeal from a judgment, entered upon tbe report of a referee in favor of tbe plaintiff for $556, being tbe value of two borses and interest from August 8, 1875.

      At that date the horses were drowned in the Erie canal at Rome, by reason, as the plaintiff claimed and the referee found, of the negligence of the defendant or its agents in the management of one of its railroad trains.-

      D. M. K. Johnson, for the appellant.

      M. D. Bmnett, for the respondent.
   Merwin, J.:

The only questions raised by the appellant relate to the rulings of the referee on matters of evidence. In the course of the trial it became material, according to the claim of the defendant, to show what freight trains passed Rome eastward between eleven and twelve o’clock of the night of August 7, 1875. For the purpose of showing this the train sheet and the train record, so-called, of that day, both kept at Little Falls, were offered in evidence. The train sheet shows the starting of all trains from Dewitt and West Albany, and when they pass the several stations between. As a train leaves Dewitt, going east, the dispatcher there gives the time and a description of the train to the telegraphic operator there, who sends it to the operator at Little Falls, and the latter enters such information on the train sheet. At Rome the station-man times each train as it passes, and gives the time and the number of engine to the . telegraphic operator at Rome, who telegraphs it to Little Falls, and it is there entered in the train sheet, so that the correctness of the train sheet, so far as the passage of trains at Rome was concerned, depended on the truthfulness of the report of the station-man at Rome and the correctness of its transmission by the operator . there. Neither of these persons were called as witnesses, or their absence accounted for. The train dispatcher at Little Falls described the manner in which the sheet was kept there, but had no knowledge of what occurred at Rome; so that there was no verification of the Rome entries except such as might be afforded from the custom of the company to keep such sheet at Little Falls. No case is cited showing that to be sufficient as against strangers. The strongest case cited is Furness v. Cope (5 Bing., 114; S. C., 2 M. & P., 197). That was an action by an assignee in bankruptcy to recover of defendant money alleged to have been paid to Mm by the bankrupt under a fraudulent preference. In order to show the condition of the bankrupt and bis firm just before bankruptcy, the ledger of the bankers with whom the firm kept casb was produced. the entries were made by various persons, and. one of the clerks stated that it was the book to wbicb all the clerks of the bouse referred to see whether they should pay the checks of their customers when presented. It appeared from this that the firm bad nothing remaining in the bankers’ bands. It wa3 held that the book was. properly received in evidence, Best, Ob. J., saying the inconvenience of calling all the clerks of the house would be seriously felt, and without the book it would be impossible to' prove that the party bad no money in the bouse, and that to prove a negative the book to wbicb all referred was sufficient, although it might not be admissible to prove the affirmative. Evidently the situation of the bankers’ ledger was the test of the credit of the bankrupt. That does not reach the present case. Besides, here an affirmative is sought to be proved.

In Ocean National Bank v. Carl (55 N. Y., 440), it was held that entries made by tbe discount clerk of tbe bank can only be proved by tbe clerk making them, if alive and within tbe State, and tbe receiving in evidence statements from other witnesses made not from personal knowledge, but from entries not thus verified is error. In Angelí & Ames on Corporations (§ 679), the general rule is said to be that entries in corporation books, of matters relating to any property or right claimed by them, can never be evidence for them unless made so by act of the legislature. (See, also, 1 Gr. Ev., § 793; Wheeler v. Walker, 45 N. H., 355; Chen. Bridge Co. v. Lewis, 63 Barb. 112.) Entries without verification do not affect strangers. (Whar. Ev. § 662; Gould v. Conway, 59 Barb., 355; Stark. Ev. [10th ed.], 455; Mayor, etc., v. Second Avenue R. R. Co., 31 Hun, 241.) Tbe rule stated in Payne v. Hodge (7 Hun, 612), would at least require tbe verifying evidence of tbe Rome station-man and operator or its equivalent. The argument of tbe defendant’s .counsel seems to be that by reason of tbe extent of tbe business of tbe defendant and tbe difficulty of furnishing strictly verifying evidence, tbe rule ought to be relaxed in tbe present instance. Still, for aught that appears here, the witnesses necessary to verify tbe entries in question could have been readily produced. More difficulty in that regard would often, be experienced by banks or other corporations and even by some firms., "We think the train sheet, so far as the Nome entries were concerned, was not sufficiently proved and was properly excluded. The same rule applies to the train book. The entries, as to the times of the passage of trains generally at Little Falls, were not as such offered. It is at least doubtful whether they were sufficiently proved, as the parties who made the entries that night there did not verify them except the entry as to one train which was in fact received. The opinion of the witness Phillips, as to whether or not the book was correct, or whether the sheet was so correct that he could tell what trains passed at Nome, was properly excluded. He had already given all his knowledge on the subject.- The questions to the witness Nichey: are you able to tell what stock trains passed Nome that night going east ? State, if you know, what stock train did pass Nome the night of August 7, 1875, going east between eleven and twelve % were properly excluded. It was quite patent at that stage of the case that the witness had no personal knowledge on the subject. It was not claimed that he had, and very evidently he was called upon to speak from the entries in the train sheet and book. That being improper, the exclusion did not injure the defendant.

The judgment should be affirmed.

Hardin, P. J., and Follett, J., concurred.

Judgment affirmed.


text:
    EDWARD W. TUCKER, Appellant, v. MARTIN COONEY and HOYT H. FREEMAN, Respondents.

      Eviction — what is such an eviction as to constitute a breach of a covenant of warranty.

    This action was brought to foreclose a mortgage given to the heirs and devisees of one Crippen by the defendants, upon their conveying to the defendants by a warranty deed certain real estate, formerly belonging to the deceased, for the consideration of $2,000, of which$l,000 was paid in cash and payment of the balance was secured by the mortgage. Thereafter the said real estate was sold under an order of the surrogate to pay debts of the deceased, and was purchased upon such sale by said defendants. The said defendants entered into possession of the land under the warranty deed and were never actually evicted therefrom:

      Held, that the sale of the land under the order of the surrogate and the purchase thereof by the defendants was such a constructive eviction as to constitute a breach of the covenant of warranty contained in the deed, and furnished a defense to the foreclosure of the mortgage given to secure the price of the land thereby conveyed.
    Appeal from a judgment, entered upon the decision of the court at the Onondaga Special Term, February, 1881, dismissing the complaint.
    The action was for the foreclosure of a bond and mortgage, dated July 15, .1878, given by the defendants above-named to Charles A. Orippen, Olive Ann Powers and Alice M. Selden, to secure the payment of $1,000, and assigned by said mortgagees to plaintiff. A personal judgment against the defendants was asked for any deficiency.. The answer set up that the bond and mortgage were given as a part of the purchase-price of the premises therein described, which the mortgagees conveyed by warranty deed to the mortgagors at the time of the execution of the mortgage; that the mortgagees derived their title to the premises as heirs and devisees of Alonzo Orippen, who died in April, 1878 ; that in June, 1880, the premises were sold under the order of the surrogate for the payment of the debts of the deceased, whereby defendants’ title and the consideration of the bond and mortgage failed, and that defendants were evicted and the covenants of the mortgagees broken, to the damage of defendants in $1,800, which they claimed to recoup. The answer also set up fraud, but that was not found by the tidal court. The reply denied the eviction, and set up that the widow of said deceased, before the deed to defendants, had conveyed her dower right to the mortgagees, and that this passed to the defendants, and they had received thereon the sum of $185, and that defendants also had received rents of the value of $2,500.

      John O. Hunt, for the appellant.

      William O. Traoy, for the respondents.
   Merwin, J.:

In July, 1878, the premises covered by the mortgage were sold by the mortgagees to the defendants for $2,000, of which $1,000 was paid down and the bond and mortgage in suit given for the balance. The mortgagees were the sole heirs and devisees of Alonzo Crippen, who died April 17, 1878, seized of the said premises, and leaving him surviving a widow and said heirs,

The widow on the 20th June, 1878, conveyed all her dower interest to the three heirs. The deed to the defendants contained the covenant on the part of the grantors “ that the premises thus conveyed in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns, they will forever warrant and defend against any person whomsoever lawfully claiming the same or any part thereof.” Immediately after the giving of this deed the defendants took possession. Afterwards and in June, 1879, the administrator, with the will annexed of said Alonzo Crippen, deceased, commenced proceedings in the Surrogate’s Court to sell the said real estate for the payment of the debts of said deceased, and this, through proceedings which are conceded to be regular, resulted in a sale of said premises by the order of the surrogate on the 12th June, 1880. At that sale the defendants bid off the premises for $2,630, which sum they paid and the sale was confirmed and a deed given to them June 19, 1880. The defendants in fact remained in possession all of the time. After the sale the administrator from the proceeds paid to the defendants $485, being the value of the dower right of the widow that had passed to the heirs by deed from the widow, and to the defendants by their deed from the heirs. The Special Term found that this sum, together with the rental use or value of the premises from July, 1878, to July, 1880, was less than the $1,000 paid down by the defendants. This finding is excepted to, but it is warranted by the evidence.

The main question on this appeal is whether the sale under the surrogate’s order, the purchase by defendants and deed to them, '' operate to perfect a liability in favor of defendants against plaintiffs’ assignors, on their covenant of warranty in the deed to defendants. In the case of Cowdrey v. Coit (44 N. Y., 382) the grantee, in a deed containing covenants of warranty and of quiet enjoyment, became himself the purchaser on the foreclosure of a prior mortgage and then sold his bid to a third party, surrendering to him the possession on his obtaining the sheriff’s deed, and it was held to be an eviction and available as a defense to an action on a bond for purchase-money, and the court say (p. 388) it was immaterial whether the grantee or the third party took the sheriff’s deed; there was in equity an eviction, the defendant was dispossessed under a title paramount to his own, and there was a failure of the consideration of the bond. This proposition was said to be authorized by the case of Hunt v. Amidon (4 Hill, 345). There the plaintiff, being entitled to the benefit of a covenant of the defendant for quiet enjoyment, brought an action in assumpsit to recover of defendant the amount paid by plaintiff upon his purchasing the premises upon a foreclosure sale of a prior mortgage. It was held the plaintiff could recover. In Waldron v. McCarty (3 Johns., ,471) the action was of covenant and the declaration set out a covenant of defendant for quiet enjoyment, the existence and foreclosure of a prior mortgage and a sale, and that the plaintiff was obliged to purchase the premises in order to prevent his being deprived and ousted of them. On demurrer the declaration was held bad as not containing an allegation of entry and expulsion or some actual disturbance in the possession, it being stated that the action in that form would not lie; but whether in some other form or count it would not lie it was not decided. This case and many subsequent ones apparently approving it are relied on by the plaintiff’s counsel in the case before us as establishing the proposition that there was not such an eviction of the defendants as will make their defense available. If the "Waldron case is claimed to be authority against the idea of a constructive eviction properly plead, it certainly would not be followed at this day. In Shattuck v. Lamb (65 N. Y., 500) a party was allowed to recover though never in possession, it being said that if the covenantee is kept out by means of a superior title this is equivalent to an eviction. There need be no eviction by process of law but a covenantee may voluntarily surrender possession to one having paramount title and then maintain his action for breach of covenant. (Shattuck v. Lamb, supra, p. 505 and cases cited.) So it has been held that when the title under which a mortgagor held has been extinguished, so that he may be legally evicted, he may then either attorn to the holder of the paramount title or surrender possession to him on demand and defend against his mortgage without actual eviction. (Curtiss v. Bush, 39 Barb., 664, and cases cited.) In Rawle on Covenants (4th ed., 158, et seq.), the rule is laid down and supported by many cases, that a constructive eviction exists where the covenantee has compulsorily purchased or taken a lease under the paramount title without any actual change of possession. (See Brown v. Dickerson, 2 Jones [12 Penn. St.], 372; Whitney v. Dinsmore, 6 Cush., 124; Loomis v. Bedel, 11 N. H., 74.)

In Boreel v. Lawton (90 N. Y., 293), it is said that there cannot be a constructive eviction without abandonment of possession. That remark should be construed in connection with the case then before the court which was was an action by a landlord against his tenant for rent, and the defendant, admitting the continuance of the tenancy during the time for which rent was demanded, alleged certain acts done or permitted by the landlord to the tenant’s damage which he set up as a counter-claim. It was held that there was not such an eviction as would furnish a basis for an action on the covenant for quiet enjoyment, and that although the defendant may have had a cause of action, it was not the subject of a counterclaim. Several other cases are cited arising out of leases, but none question the right of a tenant to attorn to a paramount title and thereby defeat an action for rent subsequently accruing. (Simers v. Saltus, 3 Den., 214; Wood’s Land, and Ten., 807, and cases cited in note 1.)

In the present case there is no question but that the title, acquired from the mortgagees and in consideration of which the mortgage was given, was extinguished by the sale under the surrogate’s decree and subsequent deed. As the result of that proceeding the -purchaser became absolutely entitled to the property. The defendants had a right to bid and to - purchase, and none of the rights of their grantors were injured by their so doing. And although they became the purchasers the rights which they held under their prior deed were none the less destroyed. Their possession under it was not only disturbed but destroyed. The injury was as complete as though there had been an actual expulsion. This was a constructive ' eviction and a breach of the covenant for quiet énjoyment. No question is made about the proposition that the plaintiff has no greater, rights than his assignors. (Crane v. Turner, 67 N. Y., 437; Seligman v. Dudley, 14 Hun, 186.) The gvidenee as to improvements, if not strictly material, did not injure the plaintiff.

It is further claimed by the plaintiff that the defendants, in accepting the value of the dower of the widow as derived through their deed, waived their rights on the covenant as against the mortgage. This is not apparent. They received back so much of the consideration they had paid, making it a partial instead of a total failure. It only reduced the amount of their counter-claim, which still goes to the full amount of the deed and mortgage. The judgment should be affirmed, with costs.

Hardin, P. J., concurred.

Present — Hardin, P. J., and Merwin, J".

Judgment affirmed, with costs.


author: Mebwin, J.;

text:
    LEWIS A. BURGESS, as Administrator, etc., of CAROLINE A. BURGESS, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Evidence — stipulation that testimony taken in another action may be read — construe-' tion of it — the answer of a witness to a question as to his motive in testifying, may be contradicted by further proof offered by the party asking the question.

    Appeal from a judgment, entered upon a verdict in favor of plaintiff for $3,500 at the Onondaga Circuit, January, 1881, and from an order denying a motion for a new trial made upon the minutes-The action was brought to recover damages for the death of Caroline A. Burgess, caused, as the plaintiff alleges, by the negligence of defendant at its crossing on Genesee street, in the village of Geddes, Onondaga county, on the léth October, 1882. The defendant denied any negligence on its part, and alleged contributory negligence on the part of the deceased and of the driver of the-carriage in which the deceased was riding.
    The court at General Term, after considering other objections, said: “ Upon the trial much of the evidence given was read from the-minutes of the trial of Malonee, administrator, etc., against the same defendant, under a stipulation which read as follows: It is hereby stipulated and agreed that upon the trial of the above entitled actions either party may read from the stenographer’s minutes in - the case of Joseph D. Malonee, as administrator of Grace, Lee Malonee, etc., v. The New Yorlc Central and Hudson River Railroad Compamy, the testimony of any and all witnesses who testified upon said trial, either party reserving the privilege of recalling and swearing any of said witnesses, and to produce and examine additional witnesses.
    '“The trial court held that no-objections could be taken to testimony read under the stipulation, that were not taken upon the Malonee trial; that photographs, proved by the evidence of a witness that was read and offered in evidence at the former trial, were .admissible; that the plaintiff could omit to read the entire evidence ■of a witness for the plaintiff on the former trial; that the plaintiff, having read the direct-examination of a witness, could also read the cross-examination, as the defendant did not read it. It is claimed that in these rulings the court erred. We think not. The stipulation was absolute that either party might read the testimony of any witness. There was no reservation of any right to further object or to strike out. The actions were about the same accident and the stipulation assumes that the testimony, as given in one case, was material in the other, and that the record was in proper form. The right to recall the witnesses or produce others was reserved. If any right to change the record was desired, it should have been so stated. It was not made obligatory upon either party to call any particular witness or 'to call all. Neither party was limited to the ■direct or to the cross-examination. The entire testimony of any witness cohld be read by either-party. The photographs that were received in evidence were made and verified by the witness whose ■evidence was read,, and were substantially a part of his evidence and were in fact produced. * * *
    “ A witness for defendant was asked, upon his cross-examination, whether, in reference to his being a witness in the case, he had said, at a certain time and place, that he proposed to wait and see where he could make the most, or whether, at a certain other time and place, he had sent word to Malonee that when this case came on he would be absent from the trial for an inducement. These statements the witness having denied, the plaintiff was allowed to prove them over the objection that the plaintiff was bound by the answer of the' witness. This evidence was admissible under the general rule taht a witness’ answers as to motives in regard to the particular transaction in controversy may be contradicted.” (Wharton’s Ev., § 561; People v. Thompson, 41 N. Y., 6.)

      W. O. Tracy, for the appellant.

      Louis Marshall, for the respondent.
   Opinion by

Mebwin, J.;

Habdin, P. J., and Follett, J., ■concurred.

Judgment and order affirmed.


author: Daniels, J.:

text:
    KATE T. RYCKMAN, Respondent, v. GARRETT W. RYCKMAN, Appellant.

      Judgment for alimony — if the defendant fails to pay it he ma/y he punished, for a contempt — Oode of Oivil Procedwre, secs. 1772, 1773, 2286.
    Where a wife has procured a judgment for a limited divorce and the husband thereafter fails to pay alimony as required by the terms of the said judgment, the court may, under the provisions of sections 1772-and 1773 of the Code of Civil Procedure, punish him as for a contempt for his failure to make such payments.
    The right to so punish him is not affected by the fact that the judgment was recovered before the said sections took effect,
    hi or can the application be answered by affidavits showing that the defendant is unable to make the payments. To procure relief upon this ground the defendant should move to be released from imprisonment under section 2286 of the Code of Civil Procedure.
    Appeal from an order directing the issuing of an attachment against the defendant because of his failure to pay alimony directed to be paid by him to the plaintiff, by a judgment, entered in this action for a separation.

      C. E. Rushmore, for the appellant.

      John Henry Hull, for the respondent.
   Daniels, J.:

This case was before this court on a preceding occasion and the plaintiff failed to maintain her order, as no proof had then been made of service of a copy of the judgment upon the defendant or of any demand for the payment of the money directed to be paid. This proof was supplied upon the hearing of the motion, when the order was made from which the appeal has been taken, and that under -the decision would probably justify an affirmance of the order without anything further being added concerning the defendant’s liability than has heretofore been stated. " But it has been again strenuously urged in behalf of the defendant that he is not liable to proceedings to piinish him for a -contempt, because of his omission to comply with the direction for payment contained in the judgment; and as the judgment itself reserved liberty to the plaintiff to apply for leave to issue an execution for the collection of the alimony unpaid it has been further insisted that this application cannot for that reason be allowed to succeed. In support o-f that position reliance has been placed on Miller v. Miller (7 Hun, 208). But that was not an application of this nature.- It was a suit brought by the plaintiff on her judgment, to obtain money payable to the husband by means of a trust created in his favor by a-nother person, and it became important to consider whether such an act-ion could be sustained without an execution having been first issued and returned unsatisfied. And it was held that it could not, and that no difficulty stood in the way preventing the plaintiff from docketing her judgment for the amount the-n unpaid upon it, and issuing an execution to secure the benefit of t-he remedy provided by the statute in that class of cases. . To maintain such an action the statute itself contemplated that an execution should be first issued and returned unsatisfied. (3 R. S. [7th ed.], 2182, § 57.)

The case in this respect was similar to that of Williams v. Thorn (70 N. Y., 270), and Adee v. Bigler (81 id., 349), and Estes v. Wilcox (67 id., 264). Whether also the defendant in the action might not be punished, for failing to comply with the direction contained in the judgment for the payment of the alimony,'was not a point in any form then under consideration, and the decision, consequently, can be of no benefit whatever to the defendant upon this appeal.

In Park v. Park (18 Hun, 466, affirmed 80 N. Y., 156) this point was considered, and in the course of the opinions delivered it was held that the defendant might be punished for a contempt for failing to comply with a direction of this description inserted in the judgment. And section 1773 of the Code expressly authorizes such a proceeding where the court shall be satisfied that the other remedies provided for, to obtain payment of the alimony, would prove ineffectual, and this, on the defendant’s own statement, was clearly a case of that description. It has been objected that this section of the Code is not applicable to the judgment in this action, as it was recovered before its enactment. And the section has been supposed to have been limited by the preceding, section to such judgments as were recovered after the enactment of this portion of the Code. Bnt that restriction has not been created by this section. It is true that it refers to judgments and orders made as prescribed in the article containing the section and the two preceding articles. But the sections in this way referred to, and contained in the two preceding articles, providing for the recovery of judgments in an action for a divorce, or separation, are the same as those previously contained in the Revised Statutes empowering the court to provide for the payment of alimony in favor of the wife. (3 R. S. [5th ed.], 236, § 58, and 238, § 67.)

"What the Code has done has been to re-enact and continue in force, without interruption, these preceding provisions, and for that reason a judgment rendered before the enactment of this portion of the Code is a judgment rendered as prescribed in the articles already mentioned. And by section 1773 the husband was subjected to a proceeding of this, nature for a . failure to comply with the directions contained in a judgment so recovered.

It was a default in paying a sum of money, specified in section 1772 of the Code, and rendering him liable to punishment in this manner. It was a remedy in express terms providing for carrying. the direction of such a judgment into effect, and it was applicable to judgments previously recovered. It was intended to provide a uniform remedy by which rights of this description could be ■enforced. And Park v. Park (supra) is a precedent for this proceeding.

Section 3352 in no form exonerated the defendant from this liability, for no right had previously been secured in any manner relieving him from punishment for disobeying the direction for the payment of alimony contained in the judgment. The proceeding to enforce the judgment was commenced after the enactment of the Code and was required to be taken under its provisions, as they have been in this instance. The authority given by this section of the Code,, distinguishes this case from that of Gane v. Gane (45 Supr. Ct., 355, and S. C., 46 id., 218), as well as from the case of Baker v. Baker (23 Hun, 360).

By way of answer to the application the defendant’s affidavit was produced, stating his inability to make the payments required from him. But he cannot relieve himself from the obligation to comply with the direction contained in the judgment in this manner. That is made the subject-matter of a motion on his part by section 2286 of the Code.

Before he can be relieved under its provisions an opportunity must be afforded to the plaintiff to controvert the statements made by him for that purpose, and that is not secured where the affidavit may be interposed, as that affidavit was, merely as an answer to the application for his punishment. This point does not appear to have been presented by way of answer to a similar affidavit in Cochran v. Ingersoll (13 Hun, 368), and it is not therefore an authority under which the plaintiff can be deprived of the right secured to her by this section of the Code.

The order providing for the issuing of the attachment was rightly made, and it should be affirmed, with ten dollars costs, besides the disbursements.

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

Order affirmed, with ten dollars costs and disbursements.


text:
    MAX HOFFMAN and JOSEPH GORTZ, Plaintiffs, v. ISAAC STEINAU and Others, Respondents. THEODORE KREUGER, Appellant.

      Surety upon an undertaking in replevin — when he will be allowed to prosecute the action brought by his principal, after the latter has abandoned it.

    The plaintiffs, who resided in a foreign country, brought this action to recover ■ the possession of personal property alleged to have been wrongfully detained by the defendants, and such property was in such action taken from the defendants’ possession and delivered to the plaintiffs. The plaintiffs became insolvent before the trial and produced no evidence to establish their right to maintain the action, whereupon the complaint was dismissed and a judgment entered in favor of the defendants for a return of the.property or the recovery of its value. Subsequently an action was brought against one of the sureties upon the undertaking given by the plaintiffs, to recover the amount of the said judgment, the other surety thereto having left the State:

      jHeld, that a motion made by the surety so sued, for leave to appear in this action and prosecute the same on behalf of the plaintiffs, in order to protect himself from liability upon his undertaking, should be granted.
    Appeal by Theodore Kruger from an order denying a motion made in his behalf for leave to prosecute this action of replevin on behalf of the plaintiffs, to protect himself against liability upon an undertaking executed by him for the return of the property.

      Blumensteil da Hirsoh, for Theodore Kreuger, appellant.

      George H. Teaman, for defendant Scheuer, respondent.
   Daniels, J.:

The action was brought by the plaintiffs'to recover the possession of personal property alleged to have been wrongfully detained from them by the defendants. They resided in a foreign country and appear to have become insolvent before the action was called for trial, and no evidence was produced in their behalf to maintain their right to prosecute it. The complaint was dismissed and upon proof of the value of the property taken from the possession of the defendants, judgment was directed in their favor for its return or the collection of its value with costs.

After this judgment was entered, an action was brought against Kruger, the appellant, upon his undertaking; the other surety at whose instance he became a party to it having previously left the State. The execution upon the judgment was returned on the 6th of February, 1884, and on the .eighth of the following month the action against the appellant was commenced by the service of a summons, and on the 26th of April 1884, an order was made requiring the attorneys for the defendants to show cause why this surety in the undertaking should not be allowed to proceed' with the prosecution of the action for his own protection against the obligations incurred by him by executing the undertaking. The motion for this leave was decided on the 9th of May 1884. There was therefore no such neglect on the part of the surety in making and bringing the application before the court as would justify its denial on that ground. The point therefore arises whether under these circumstances he should be permitted to intervene for his own benefit and protection, and bring the action to trial upon such evidence as may be obtained for that purpose, with the ultimate object of protecting himself against liability.

A point of this description was considered in Jewett v. Crane (35 Barb., 208), where it was held that liberty might be given to sureties to intervene for their own protection and defend an action brought against their principal. The opinion of the court in this case is an authority in support of the motion made by the appellant, and so is the case of Lyon v. Tallmadge (14 Johns., 501), where it was held that sureties for the sheriff had a right to contest by writ of error the legality of the judgment recovered against their principal, and which they would be obligated to pay in case it should be sustained. (Id., 514.) Sureties, it has been held, are always regarded with great indulgence in everything depending upon the discretion of a court of justice. (Supervisors, etc., v. Dorr, 1 Denio, 268-270.) And within this principle they may be permitted where that can be justly or equitably done to protect themselves against liability, where their principal shall fail to do so by proceeding in, or resisting, the litigation for which they became bound in his name. That is all that was sought to be accomplished by the application made in behalf of the appellant. .

"Whether evidence can be obtained which will establish the right of the plaintiffs in the action to the recovery of the property, the possession of which was obtained by them at its commencement, is not a matter 'to be determined upon this application. All that is necessary now to consider is whether the case, as it has been presented in behalf of the surety, will justify an order permitting him to proceed in the name of the plaintiffs to a trial of the case upon its merits, and that point seems to be maintained in his favor by the authorities to which reference has been made. v

The order from which the appeal has been taken should be reversed, and an order entered so far vacating the judgment already recovered in the action as to permit this surety to proceed in the name of the plaintiffs to a trial of the issues in the ordinary manner, upon the payment of the costs of the trial and the costs of opposing the motion. The judgment, except so far as it shall be vacated, and the action against the appellant upon his undertaking, to be allowed to stand as they now do until the final trial and determination of this action, and subject to such'further order or direction as shall then be made. The appellant should also recover the usual costs and disbursements of this appeal.

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

Order reversed, with ten dollars costs and disbursements, and motion granted on conditions expressed in opinion.


author: Per Curiam:

text:
    In the Matter of the Petition of ELIHU J. GRANGER, Defendant and Appellant, v. EDWIN A. SHEBLE, Plaintiff and Respondent.

      Bemoval of came from the Mwrine Oourt to the Supreme Court, in order to change the venue— Code of Civil Procedure, sec. 819.
    Where an application is made, as provided in section 319 of the Code of Civil Procedure, to remove an action from the Marine Court to the Supreme Court, for the purpose of changing the place of trial thereof, no demand for a change of the place of trial need he made prior to giving notice of the application.
    Appeal from an order made at a Special Term, denying a motion to remove the action from the Marine Oourt of the city of New York to the Supreme Court, for the purpose of changing the place of trial.

      O. P. Backus, for the appellant.

      W. E. R. Bussell, for the respondent.
   Per Curiam:

The application to change the place of trial was predicated of section 319, of the Code, which declares what sections shall be applicable to the proceedings contemplated. It appears that this action was commenced on the 18th of March, 1884; issue was joined on the twenty-fourth of April following, and a motion to change the place of trial to the Second District noticed for the twenty-sixth of April and argued on the fifth of May.

The learned justice in the court below denied the motion on the ground that it was made too late. ."We think this was a missapprehension of the provisions of the Code relative to such applications. The section already mentioned declares that the application may be made by an order at any time after the joinder of an issue of fact and before the trial thereof, and does not require in express terms or by implication that any demand should be made for a change of place of trial prior to the notice of application. Whether the order sought should be granted or not is purely a matter of discretion. (Cornell v. Evans, 7 Hun, 299.)

' It seems that the learned justice in the court below did not examine the case upon its merits and therefore the element of discretion was not called into requisition. For these reasons we think that the order should be reversed with leave to renew the motion on its merits. It is proper to suggest that in this and all similar applications something more is required to be shown than the mere fact that the defendant is not a resident of the county where the action is brought.

Present — Davis, P. J., Brady and Daniels, JJ.

Order reversed, with ten dollars costs and disbursements, with leave to renew the motion on its merits.


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

text:
       THOMAS F. HAYES, as Substituted Assignee of DUNCAN A. GRANT, Appellant, v. ALEXANDER V. DAVIDSON, as Sheriff of the City and County of New York, Respondent.

      Action against a sheriff for the wrongfxcl seizure of goods— when m'editors who ha/oe severally indemnified the sheriff may he allowed to defend the action — Code of Civil Procedure, sec. 1421.
    The plaintiff, as the successor of the general assignee of One Grant, brought this action against the sheriff of New York to recover a stock of goods and fixtures which had been seized by him, after the' execution of the assignment, under attachments and executions issued against Grant. All the property was seized by the sheriff on January fourth under four attachments and one execution issued by different creditors.' Other attachments were issued to him on January twelfth and January twenty-sixth, and another execution on January fourteenth, and subsequently three other executions, so that the sheriff finally held possession of the property under six attachments and five executions. The creditors for whose benefit the property was seized under the attachments, and two of the creditors in the executions, subsequently and at different times, severally delivered to the sheriff bonds to indemnify him from loss by reason of holding the property. The sheriff subsequently sold the property seized, with the exception of a portion thereof which was returned to the plaintiff. After these bonds had been given, the attaching creditors and the creditors in the two executions, who had given them, applied to the court for and procured an order substituting them as defendants in the place of the sheriff under the authority of section 1421 of the Code of Civil Procedure.
    Held, that the order was properly made and should be affirmed. (Davis, P. J., dissenting.)
    Where parties, after the seizure of property by a sheriff, furnish him with indemnity against liability for his acts in taking, holding and disposing of it, they make themselves parties to the wrong, if a wrong was committed by the seizure, and liable for the full value of the property so seized.
    Appeal from an order substituting in place of the defendant, the sheriff of New York, the obligors in bonds of indemnity given to him, to indemnify him against loss by reason of his holding certain property seized by him, against the claim of the plaintiff in the above entitled action.

      Peter Condon, for the appellant.

      Geo. F. Langbem, for the indemnitors of Arnold, Constable & Co.

      Edward S. Patch and Blumenstiel & Pirsch, for the respondent.

       Decision handed down November 11, 1884.

   Daniels, J.:

The property in suit and for the value of which the plaintiff, as substituted assignee, claims to recover against the sheriff, consisted of a stock of goods and fixtures contained in the store 28 "West Twenty-third street, occupied by Duncan A. Gramc. lie had .previously made a general assignment for the benefit of his creditors, to a predecessor of tiie plaintiff, who commenced this action as substituted assignee. After the assignment, the property was seized by the sheriff on the 4th of January, 1884, under four attachments and one execution, issued in favor of as many different creditors. The sheriff, on the fourth of January, seized and took possession of all the stock and fixtures contained in the store'previously occupied by the. debtor. After that, and on the 12th of January, 1884, another attachment was issued to him, and still another on the twenty-sixth of the same month, and on the fourteenth of that month another execution was issued to him against the same debtor. Three other executions were also issued and the sheriff finally held possession of the property under all the attachments and the five executions. The creditors for whose benefit the property was seized by the sheriff under the attachments, and the executions issued on the third and fourteenth of January, severally delivered to the sheriff bonds of indemnity to indemnify and save him harmless from loss, by reason of his holding the property against the claim of the assignee. These bonds were given at different times, but they were all stated to have contained the same condition. And under and by virtue of the indemnity so provided, and the process issued to the sheriff, he afterwards sold the property seized, with the exception of eleven cases of goods of the value of $4,000, which were returned to the plaintiff. After this indemnity had been provided for the sheriff, the attaching creditors and the creditors in the two executions, who executed the bonds with their sureties, applied to the court to be substituted as the defendants im the action in place of the sheriff, under the authority of section 1421 of the Code, and an order to that effect was made by the court, placing the applicants in the legal position, where they themselves were at liberty to take charge of the defense of the action in their own behalf.

It has been objected that the sureties to the sheriff, severally securing the seizure of the property in this manner, are not entitled, under the authority of this section, to be substituted in his place as defendants in the action. And if any of the applicants were limited in the extent of their liability to only a'portion of the property > seized under any particular attachment or execution, the objection would probably be well founded, for the joint action could not be made divisible or apportioned in such a manner as to determine the amount for which a liability would arise under each respective attachment or execution. An order in such a case would subject the plaintiff to too many risks and embarrassments to render it a proper exercise of discretion under this section. If made at all in a case of that description, it would necessarily be for a division of the action under section 1424 of the Code, limiting the liability of the applicants to such part only of the property as might have been seized or taken under his or their process. But in this action no difficulty of that description can possibly be encountered, for it was after the sheriff had seized the entire stock of goods and fixtures that the several bonds of indemnity were given to him, and by virtue of these bonds the property was retained and afterwards sold. If the seizures of the property under the attachments and the executions were wrongful, the parties to these bonds rendered themselves liable for the wrong by their undertaking to save the sheriff harmless from loss for holding the property against the claim of the plaintiff.

Neither of the bonds was given to protect him from such liability as to any specific or divisible portion of the property; but the language of each of the bonds is shown to have been so broad as to include all the property which the sheriff had seized. Bor that reason it cannot be important to inquire whether he had made an excessive seizure or taken more property into his possession than the attachments and the executions authorized him to take, for by these bonds the parties to them took upon themselves the entire responsibility of saving the shei’iff harmless from loss for taking all the property, as that had been done under the processes issued to him. Bor where parties, even after the seizure of property by the sheriff, furnish him with indemnity against liability for his acts in taking, holding and disposing of it, they make themselves parties to the wrong, if a wrong was committed by the seizure, and liable for the full value of the property so seized. (Herring v. Hoppock, 3 Duer, 20; affirmed, 15 N. Y., 409; Griffiths v. Hardenbergh, 41 id., 464; Chapman v. O'Brien, 39 N. Y. Supr. Ct. R., 244.)

Whether, therefore, the sheriff seized and sold no more of the property 'than was necessary to satisfy the debts mentioned in the attachments and executions, or made an excessive seizure, it is not necessary to inquire, for the persons executing the several bonds assumed the responsibility of all that he had dóne in that respect, and subjected themselves to the liability of saving him harmless from the legal consequences of his acts. They practically combined the seizures which had been several, and previously made, and assumed their consequences as one act by means of the bonds executed and delivered to the sheriff. And the case was then presented substantially the same as a single seizure under the attachments and executions, which brought it within the spirit, if not literally within the language of section 1421 of the Code. From that time the creditors and their sureties were all united in maintaining and protecting the act of the sheriff in holding possession of and afterwards selling the property, and if any wrong or legal liability was created by his acts in doing that, the parties to each of these bonds became jointly liable for the consequences of those acts, and that presented a case within this section of the Code. (Malcom v. O'Reilly, 89 N. Y., 156; Hessberg v. Riley, 91 id., 377; Hein v. Davidson, 67 How., 148.)

It has been objected to the order that it was not made to appear by the affidavits in support of the motion that the bonds were given previous to the commencement of this suit. But if that were necessary a strong probability arises that they were so given. The first was executed and delivered on the 9th of January, 1884, and the last on the 13th of February, 1884, and it was not intimated in the affidavit made by the plaintiff that the suit against the sheriff had been commenced before that time. . If that was the fact, and any advantage could be derived from it by stating it, the plaintiff should at least have suggested it in the affidavit made by him for the purpose of opposing the motion. That was not done; neither does it appear that any objection was taken to the omission of the statement on the hearing of the motion which resulted in the order. If it had then been made, proof on the subject could havé been supplied by the permission of the court, which would have removed all uncertainty as to this fact in the case. And the plaintiff’s failure to present the objection at that time precludes him from deriving any advantage from it when first made upon .the hearing of the appeal.

It was also objected that the order should' not be made without requiring a stipulation from the indemnitors, allowing the statements or admissions made by the sheriff to be .given in evidence against them upon the trial. But the right to give such testimony cannot be an important one to the plaintiff. For proof of the fact can be readily given that the sheriff did seize the entire stock and fixtures contained in the store No. 28 West Twenty-third street, and the bonds given by the applicants,.even though less in the aggregate than the value of the property, subjected them to liability for all the consequences of such seizure, ahd these facts, together with proof of the value of the property seized, will be all that can be required to make out the plaintiff’s right to recover, in the first instance, and it will be for the defendants themselves to establish the fact, if that can be done, that they were entitled to seize the property, notwithstanding the preceding assignment of their debtor. The same evidence required to present the case against the sheriff, with the additional fact of the execution and delivery of the bonds, will present it completely and effectually against the parties executing those bonds, and no important right or interest of the plaintiff will be in any respect jeopardized or changed by substituting those parties as defendants in the action, in place of the sheriff. The fact that the sheriff also acted under three other executions in seizing and holding the property is a circumstance of no importance. For, as to all the property which he took, the parties executing the bonds rendered themselves jointly liable to the plaintiff.

The order, for these reasons^ was right, and it should be affirmed, with ten dollars costs and the disbursements.

Brady, J.:

I concur with Daniels, J. I think his reasons are conclusive.

Davis, P. J..

I do not concur in the conclusions of my brother Daniels in this ease. A complete and perfect cause of action arose in favor of the plaintiff upon the first seizure of the stoek of goods on- the 4th of January, 1884, when the sheriff attached and took possession of the stock of goods by virtue of the attachments and execution then in his hands. The plaintiff has a right to rely on that cause of action if he chooses. Subsequently, on other and different days, other attachments and executions came to the sheriff’s hands upon which he entered attachments and levies of the same stock then in his possession. All the several creditors in whose behalf the several processes were issued after their respective levies gave several and separate bonds of indemnity to the sheriff, under which he proceeded. They all now seek to be substituted as defendants in the action against the sheriff, and to have him discharged therefrom. Under such circumstances this is neither just nor equitable. Several of the defendants are not liable for the first seizure, nor do their bonds of indemnity extend to that. If the plaintiff prefers, upon the trial of the action against the sheriff, to rely wholly on the seizure made on the 4th of January, 1884, he is entitled to do so, and for that cause the creditors who subsequently issued attachments and executions are not liable to plaintiff nor bound to indemnify the sheriff. Nor is the plaintiff under any obligation to accept as substituted defendants in his action parties who, to say the least, will have power to raise against him embarrassing and doubtful questions touching their liability for acts of the sheriff done for the exclusive benefit of others before their processes were put in his hands. The provisions of the Code for such substitution were only intended to apply to clear and plain cases of liability by indemnitors for any and all grounds of action upon which the plaintiff, at the trial, may elect to stand.

I think there are many embarrassing questions in this case that may be sprung upon the trial against the plaintiff if the-substitution be made. For instance, if the sheriff were not liable for tort in the original seizure, but made himself so by subsequent misconduct affecting the property taken by which it was lost or injured in value, prior to the coming in of the second or third batches of process, the plaintiff may be greatly embarrassed in attempting to hold the last set, or, indeed, any of the indemnitors, for that cause of action. And so if he chooses to stand on trial on proof of the seizure and removal of the goods on the fourth of January, it is difficult to see why a party 'who had nothing to do with that wrong would not be entitled to a nonsuit. It is not easy to see why, if all the parties sought to be substituted as defendants are brought in, it will not be necessary as against each of them to show either a joint or several wrongful act for which he is chargeable. The plaintiff may therefore be forced to establish a series of wrongs before he can make out a cause of action against all the parties, while against, the sheriff he may stand upon a single one.

To my mind the case presented on the motion is not one upon which the court, in the exercise of sound discretion, ought to uphold the order of substitution. It cannot, nor indeed should it, compel a division of the action into several actions because that is imposing the burthen of ¶ several litigations upon the plaintiff where, in both fact and law, he has a single one against a single defendant of which he cannot be deprived. I think the order should be reversed, and the motion denied.

Order affirmed, with ten dollars cost and disbursements.