text:
    THE BANK OF COMMERCE OF MEMPHIS v. J. G. SHAW BLANK BOOK CO.

      Bills of exchange.—Liability on acceptance made before bill drawn.—2 R. S. (Edm.) 722, § 8.
    To constitute a liability under the statute (2 R. 8. [Edm.] 722, § 8), on an acceptance of a bill before it is drawn, there must be an unconditional promise in writing to accept the bill sued on.
    Where there is nothing in the letter relied on to inform one that it was proposed to draw a draft, or that a draft was to be accepted when drawn, it is incompetent to supply the deficiency by parol.
    Ruiz v. Renauld, 100 N. Y. 257, distinguished.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 17, 1886.
    Exceptions taken by the plaintiff and ordered to be heard in the first instance at general term.
    Action to recover from the defendant the amount of two drafts drawn on it by the firm of Wills & Wildberger, of Memphis, the drafts being discounted by the plaintiff. The defendant did not accept them in the usual way, but the plaintiff claimed that the defendant had written a letter which must be construed as an unconditional promise to accept, under the statute (1 R. S. [Edm] 722, § 8), and that the plaintiff having discounted the drafts on the strength of this letter, the defendant can be held as acceptor.
    The letter in question was as follows :—
    “New York, July 2, 1883.
    “ Messrs. Wills & Wildberger :
    “Gentlemen:—We find you have to pay us about nine hundred dollars the present month. We now propose to extend this amount if necessary by a payment of ten per cent, and interest. You must be aware this constant extension with small payments cannot give us confidence to increase or continue your account; and it has occurred to us as your orders have been quite liberal, that your business must be sufficiently active to make a better showing. If we were satisfied that your condition was such as to secure us from ultimate loss, we would have much less objection to the method we are now doing business with you, or we would systematize your credits, that you could keep a full stock to your advantage. Let us hear from you.
    “ Yours truly,
    “J. G. Shaw, P.”
    It appeared from the testimony of Mr. Wildberger, a member of the firm who drew the draft in question on defendant, that the mode of dealing with the defendant company was, that “ goods were bought by the firm from the company, on four months’ time and an acceptance given for the amount.” He also testified, that the $900 mentioned in the letter referred to paper of said firm of Wills & Wildberger, maturing during the month mentioned, and that the whole amount was represented by drafts upon his firm ; that the company had been in the habit of drawing upon his firm for acceptance, and had been extending their paper for four or five years, and he described the method of extension, as follows :— “ That if the firm could not meet a note it would draw back for part of it; make a sight draft on defendant for the part it was unable to pay and have that draft discounted in the bank ; ” he further stated that he never drew any drafts on the company except as part or whole payment of his firm’s acceptances, and that the drafts in suit were drawn for that purpose. There was some testimony tending to show knowledge by plaintiff of this course of dealing between said firm and defendant, and that it was induced to cash the drafts in question by the reading of the letter above referred to.
    The defendant offered no testimony, and at the close of plaintiff’s case the court denied plaintiff’s motion for the direction of a verdict, and directed a verdict for the defendant, to which rulings plaintiff excepted.

      Gibson & Whiting, and John B. Whiting, for plaintiff :
    I. It is not necessary that there should be an explicit reference to bills of exchange in the letter itself (Ruiz v. Renauld, 100 N. Y. 256).
    II. The letter when taken in connection with the course of 'dealing of the parties can only be construed as containing an authorization to draw.
    HI. There was sufficient evidence to make out a prima facie case of knowledge on the part of the bank of the dealings between the firm and the company. Assuming then, that there was such a course of dealing, it is clear from the authorities that evidence to show it was admissible, and it should be considered in construing the letter (Ruiz v. Renauld, supra; also Daily Reg. Sept. 14, 1883).
    IY- It has been repeatedly held, that an authorization to draw is equivalent to a promise to accept (Merchant’s Bank v. Griswold, 72 N. Y. 472 ; Barney v. Worthington, 37 Ib. 116 ; Merchant’s. Exchange Bank v. Cardozo, 3 J. & S. 162).

      Holmes & Adams, and George H Adams, for defendant.
   By the Court.—Ingraham, J.

In order to make tile defendant liable there must be “ an unconditional promise in writing to accept ” the bill. This promise must be in writing, and it must be to accept the draft or bill of exchange sued on.

The letter relied on by the plaintiff contains simply a proposition to extend the payment of the $900 coming due during the month. There is nothing in the letter that would inform any one that it was proposed to draw a draft, or that a draft was to be accepted when drawn.

Where the contract is required by law to be in writing the material parts of the contract must be embraced in the writing, and it is incompetent to supply any deficiency by parol. This rule has been applied so frequently in cases arising under the statute of frauds that it is hardly necessary to cite authorities. The case of Wright v. Weeks (25 N. Y. 153), is however, in point.

In the case of Ruiz v. Renauld (100 N. Y. 257), relied • on by the plaintiff, the letter said to contain the promise was in answer to a letter written by the drawer of the draft sued on, which contained a request to allow the writers “to continue our drafts,” and stated “We expect that you will allow us to continue our drafts and remittances as we have been doing until now,” and in reply to such request the defendants wrote that “ In the meantime we naturally rely upon the renewal of the drafts due on the 29th inst.”

It will be seen that taking these two letters together, there was an absolute authority to draw the drafts sued on for the renewal of the drafts due on the 29th, and that was held to be sufficient.

But in the case at bar, no request for the renewal of any existing drafts is in evidence, and no authority to draw or promise to accept a draft can be made out by the letter itself. No authority to draw or promise to accept the draft is in writing.

We think the exceptions should be overruled, and judgment ordered for the defendant on the verdict with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MATILDA SLOAN, as Executrix, &c., Respondent, v. WILLIAM R. H. MARTIN, et al., Appellants.

      Covenant—restraining breach of by injunction.

    The breach of a covenant in a lease not to underlet, will be restrained by-injunction ; it appearing that it would be impossible to accurately ascertain the damages that would arise from its breach, and no facts being shown which would make it inequitable to enforce it.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 17, 1886.
    Appeal from order granting injunction.
    Action to restrain a breach of a covenant, contained in a lease made by George Sloan, of whose will the plaintiff was sole executrix, to William R. H. Martin and Frank R. Chambers, not to assign the lease or un derlet the premises, or any part thereof, without the landlord’s consent.
    The defendants, Martin and Chambers, threatened to underlet a portion of the demised premises to defendant, The American News Company, for a term of sixty days. The lease contained a clause that if default should be made in any of its covenants on the part of the lessees to be kept, then it should and might be lawful for the lessor, his successor or assigns upon the said demised premises, and every part thereof, wholly to reenter and the same to have again, re-possess and enjoy as in their first and former estate. It also contained a clause that in case of default in any of its covenants the lessor might resume possession of the premises and re-let the same for the remainder of the term at the best rent that he could obtain on account of the lessees who would make good any deficiency.
    A motion was made on the complaint and an affidavit, for an injunction restraining such sub-letting and restraining the defendant, The American News Company, from occupying the demised premises or any portion thereof, during the pendency of the action. The motion was opposed on affidavits which defendants claimed fully met and denied all the allegations in the moving papers as to irreparable or any injury arising from the sub-letting in question.
    The motion was granted; and from the order entered on the decision granting it, defendants appealed.

      George J. Peet, attorney and of counsel for appellants, argued :
    I. An injunction will not lie to restrain the breach of a covenant unless the plaintiff shows that he will suffer irreparable injury thereby (Hilliard on Injunctions, chap. 1, § 32; Dyke v. Taylor, 3 D., F. & J. 467).
    Every statement in the moving papers as to any injury to result is denied by the affidavits on the part of defendants, or shown to be a gross exaggeration; It is well settled that where the material facts alleged in the affidavits relied upon by the plaintiffs to sustain an injunction are denied under oath, such denial defeats the injunction (Hilliard on Injunctions, p. 126; Am. Grocer’s Pub. Assoc, v. Grocer’s Pub. Co., 51 How. 402 ; Roberts v. Mathews, 18 Abb. Pr. 199).
    II. The plaintiff has adequate remedies at law, and the fact that ample remedy exists at law for violation of a covenant is always sufficient objection to the interference by injunction [High on Injunctions, 2d ed., § 1107). In the case at bar the plaintiff has the remedy of an action for damages for a breach of the covenant. The sub-letting was not to be for a longer period than sixty days, and if any damages accrued therefrom, they could be easily determined by a jury, and, without doubt, collected. There is affirmative proof that the lessees are amply able to answer in damages. The existence of this remedy alone is sufficient to defeat the injunction. But the lease provides another remedy. The lessor has reserved the right to re-enter the premises for covenants broken, and remove all persons therefrom. And the lease also provides that the lessor may re-let the premises on account of the lessees, and hold them for any deficiency. The remedy of forfeiture is a severe and ample one, and is provided for by the parties themselves in the lease, to be applied in case of a breach of the covenant. This remedy would not exist if not so provided in the lease (Taylors Landlord and Tenant, § 291). Trenor v. Jackson (15 Abb. Pr. N. S. 115), is a direct authority in point against the injunction.
    III. The proposed sub-letting to the News Company would not be a breach of the covenant. The covenant in question is not a covenant “not to sub-let,” but “ not to sub-let without the consent of the lessor.” These do not mean the same. A covenant “ not to sublet” does not contemplate a sub-letting to anybody or under any circumstances, but a covenant not to sub-let without the consent of the lessor does contemplate a subletting. It implies a sub-letting to a proper sub-tenant, and that when such a sub-tenant is procured, the lessor will give his consent, otherwise the lessor could, during the entire existence of the lease, from a mere caprice, whim or fancy, from pique or feelings of resentment, or for no reason at all, prevent his lessee from sub-letting any portion of the premises to any one, however excellent a sub-tenant he might be. In this case the respondent’s objections to the American News Company, as sub-tenants, are shown to be baseless or founded on her mistake and misapprehension; nevertheless the respondent refuses her consent to such sub-letting, even for one month on trial, and invokes the covenant to sustain her position. Such an interpretation of the covenant is a harsh and oppressive one. A court of equity will not restrain by injunction the violation of a harsh and oppressive covenant in a lease (Talbot v. Ford, 13 Sim. 173). Courts of equity always interpret covenants Strictly against the covenantee. And covenants not to assign or underlet are construed with the utmost jealousy (Taylor's L. & T. §§ 402-3).

      Maclay & Forrest, attorneys, and Michael M. Forrest, of counsel for respondent, argued:
    I. If the American News Company be permitted, in violation of the terms of the covenant in the lease, to enter into possession of any portion of the premises, it would create an unbearable nuisance to the plaintiff and the tenants in the other portions of the building, by reason of the number of people who would be attracted to their place of business at all hours of the day and night—the business of the defendant being to distribute the New York papers to newsboys and dealers.
    II. The covenant' in the lease is plain and simple, and not an objectionable one, and was entered into oy consent of all the parties to the lease.
    TTT- This being so, a court of equity will recognize and enforce it as well as other agreements concerning the occupation and mode of use of real estate (Steward v. Winters, 4 San. Ch. 587).
    IY. Where the lessee covenants as in this case, equity will keep him to his covenant, without irreparable or even substantial injury being shown from a breach of the covenant (Ib.; Howard v. Ellis, 4 Sand. 369 ; Engle v. Thorn, 3 Duer, 15).

      V. ' One of the express covenants of the lease, and a condition on which the defendants obtained it, was their covenant not to underlet or assign—the lessor had a right to impose such a condition when he let the premises—and the defendants accepted i,t. Without such restriction the defendants could not have' obtained their lease, and knowing this they accepted it. This being so, the plaintiff is entitled to the performance of the covenant, and the defendants having threatened to break it, she is entitled to bring this action, and to have the injunction sustained, even if no pecuniary damage can be shown or estimated, for in such a case it is peculiarly the duty of equity to interfere and give specific relief to the party to be injured (McAdam, Landlord & Tenant, 361, 372, 374).
    VI. The case of Trenor v. Jackson (15 Abb. N. S. 115), cited by the defendants, is answered by the fact that the right of re-entry reserved in the lease is at the option of the plaintiff, and is one which she does not choose to exercise (Clark v. Jones, 1 Den. 516).
   Per Curiam.

The premises described in the complaint were leased to the defendants, who covenanted not to assign the lease or under-let the premises or any part thereof without the landlord’s consent in writing.

By that covenant the plaintiff reserved to herself the right to refuse to allow a person to occupy the premises without her consent. To this the defendants have agreed. It will not do to say that the defendants consider the proposed tenant unobjectionable. The covenant is that plaintiff shall consent. The plaintiff is the one who is to determine that question.

The court cannot substitute its judgment for that of the lessor. The papers show that it would be impossible to accurately ascertain the damages that would arise from the breach of this covenant, and no facts are shown which would make it inequitable to enforce such covenant.

On the case as presented by the affidavits, we think the plaintiff was entitled to the injunction granted, and the order appealed from should he affirmed with |10 costs and disbursements.


author:
“Ingraham, J.
      Per Curiam.

text:
    ELIZABETH R. COGSWELL, Respondent, v. THE NEW YORK, N. H. & H. R. R. CO., Appellant.

      Jury trial of issue of nuisance—luhen matter of right, though equitable relief be asked.

    In an action for the abatement of a nuisance, the recovery of damages, and for a perpetual injunction, though final judgment must, after a trial of the issues, be given by the court at special term, the plaintiff is entitled as a matter of right, to a jury trial of the issue of nuisance or no nuisance, and the finding of the jury on that issue is therefore, under § 970, Code Civ. Proc., conclusive in the action.
    Hudson v. Caryl (44 N. Y. 553), followed.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 17, 1886.
    Appeal from order awarding issues to be tried by a jury.
    Action to abate a nuisance, to recover damages sustained by reason thereof, and seeking a perpetual injunction, by decree, from the parrying on of any trade or occupation offensive to the senses or injurious to the plaintiff’s property. The action has been before tried at special term and thence appealed (See 48 Super. Gt. 31).

      William E. Barnett, attorney, and Henry H. Anderson, of counsel for appellant:
    I. Any right to trial by jury was waived by going to the former trial (§ 1009, Code Civ. Proc.).

    II. If the case be considered open, the provisions of the Code of Civil Procedure are in §§ 968-972. Section 968 provides that “In each of the following actions an issue of fact must be tried by a jury, unless the jury trial is waived or a reference directed.” Subdivision 2. “An action . . . for a nuisance.” In this case it would seem that no issues are to be framed. Section 969 provides that “ An issue of law and an issue of fact, in an action not specified in the last section, or wherein provision for a trial by jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed.” Section 970 provides that “ Where a party is entitled by the constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not specified in § 968 of this act, he may apply, upon notice to the court, for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly.” Such is an action for divorce (§ 1757). In a case arising under section 970 it is provided that the findings of the jury upon each question so stated, is conclusive in the action, unless the verdict is set aside or a new trial granted.
    There are three classes of cases involved in the questions on this appeal. 1st. Actions “ for a nuisance ” (§ 968). (a) These are believed to be intended to supersede the old action for a nuisance, commenced by writ of nuisance, which is now abolished. This is not, strictly speaking, such an action. No issues were required, and the judgment which followed was statutory. It was not an equity case in any sense of the term. 2d. Section 970 : “ When the party is entitled by Constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not specified in § 968.” This action is evidently not the one referred to - in § 970, for there is no provision of law entitling the plaintiff to a jury trial unless it is an action for a nuisance, in which case it would come under § 968. 3d. The third class is described in section 971, “ In an action where a party is not entitled as of right to a trial by jury, the court may, in its discretion, upon the application of either party, or without application, direct that one or more questions of fact arising upon the issues be tried by a jury, and may cause these questions to be distinctly and plainly stated for trial accordingly.”
    The case at bar would seem to be covered by § 971, and the court below was in error in saying that the case comes under the provisions of § 970.
    It is then the better practice to go to the special term in the first instance, and if the issues to be tried turn out to be such as require a. trial by jury, for the court then to determine the questions of fact or the issues to be sent for trial (Wheelock v. Lee, 74 N. Y., 495; Hammond v. Morgan, Ib. 179).

      Lewis Johnston, for respondent:
    I. Section 968, Code Civil Procedure provides that in an action for a nuisance a jury trial must be had, unless waived. Section 3339 provides that “ the distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.” This action is of the nature of a suit in equity, because of the relief by injunction prayed for, and hence the necessity of applying to the court under § 970, that issues be framed.
    II. The nature of the action is such that either party has the constitutional right to have the question of whether the grievance complained of is a private nuisance and the damage sustained thereby, decided by a jury (Hudson v. Caryll, 44 N. Y. 553 ; People, &c. v. Metropolitan Telephone Co., 31 Hun, 600). (a) In Davison v. Associates of the Jersey Co. (71 N. Y. 333), plaintiff had brought an action for specific performance; at the trial plaintiff demanded a jury, on the ground that defendant had conveyed, and his relief could only be damages for a breach of agreement; held that he had elected to bring an equitable action and chosen the forum, and that by not amending his complaint he had waived a jury trial. (6) The judge at special term has made the order appealed from recite that trial by jury is a matter of right, and the order must stand or fall upon that theory, unless the general term affirm it as a proper exercise of discretion, even if not a matter of right.
   The following opinion was rendered at special term

“Ingraham, J.

On the argument of the motion counsel for the plaintiff was understood to have stated that the action was one in which it was discretionary with the court whether or not issues should be settled and sent to a jury for trial.

“ On an examination of the complaint in the action, however, it appears that the plaintiff, after alleging certain facts tending to show that the defendant maintained a private nuisance, demanded judgment that the defendant may be decreed to abate said nuisance and to pay plaintiff damages which she has sustained by reason thereof.

“ In the opinion of the court of appeals reversing the judgment in favor of the defendant, Judge Andrews stated that upon the evidence and findings in this case there is no room for doubt that the engine house as used by the defendant constitutes, under the general rule of law, a private nuisance to the property of the plaintiff, and the action is treated throughout the opinion as for the abatement of a private nuisance.

“By section 968 of the Code, it is provided that in an action for a nuisance an issue of fact must be tried by a jury, unless a jury trial is waived or a reference is directed.

“ In Hudson v. Caryl (44 N. Y. 553), it was held by the commission of appeals that under the provisions of the constitution of the state, where the facts stated would sustain a common law action for the removal of a nuisance, that action must, on the demand of either party, be tried by a jury.

“ The fact that the complaint also demands equitable relief so that neither party is entitled, as a matter of right, to a trial of all the issues by a jury, would bring the case within the provisions of section 970 of the Code, which provides that where a party is entitled by the constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not specified in section 968 of this act, he may apply upon notice to the court for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly.

“In People v. Metropolitan Telephone Co. (31 Hun, 600), the general term of the supreme court held, ‘ by the settled practice preceding the enactment of the present Code, that portion of the action which presents the question whether these poles were a nuisance was the proper subject of trial by jury, and that practice has been embodied in subdivision 2, of section 968, of the Code of Civil Procedure.’

“ I think, therefore, that the plaintiff is entitled to a trial by jury of the issues, as to whether or not the engine house as maintained by the defendant was a nuisance, and as to the amount of damage caused by the said nuisance if one is found to exist.

“ If the findings of the jury upon the issues submitted to them do not cover the whole case and other issues remain to be tried, or other facts requisite for equitable relief remain to be proven, then the case must be regularly brought to a hearing before the court, as provided in the case of Hammond v. Morgan (101 N. Y. 187).

“ The motion must, therefore, be granted.

“ The order can be settled on notice when the defendant can be heard as to the issues to be submitted to the jury.”

Per Curiam.

This action is brought for the abatement of a nuisance, the recovery of damages, and for a perpetual injunction. The plaintiff, therefore, seeks both legal and equitable relief. In such a case final judgment must, after a trial of the issues, be given by the court at special term.

The question presented by the appeal is whether, in such a case, the plaintiff can claim a trial by jury of the issue of nuisance or no nuisance, as matter of right, or whether such a trial of the said issue rests in the discretion of the court.

The correct determination of this question is of great importance to the defendant, because, if the plaintiff is absolutely entitled to a jury trial, the finding of the jury upon the issue submitted, is, under § 970 of the Code of Civil Procedure, conclusive in the action, unless the verdict is set aside, or a new trial is granted, while, on the other hand, if a trial by jury rests in the discretion of the court, the verdict is merely for the information of the conscience of the court.

Under the decision by the commission of appeals of Hudson v. Caryl (44 N. Y. 553), we feel constrained to hold that the plaintiff is entitled, as matter of right, to a trial of the said issue by a jury, and that the learned judge below who made the order, correctly stated the reasons at length which required the granting of the order as made.

The order appealed from should be affirmed with costs.


text:
    LEWIS HOPNER, Appellant, v. JOHN. E. McGOWAN, Respondent.

      False imprisonment—what does not constitute.

    Plaintiff was arrested by a police officer on a charge of assault, and taken to a police court, where his conduct was such as to disturb the proceedings of the court, and upon the direction of one of the officers thereof he was removed by the policeman to the prisoners’ room adjoining, until his case was brought up. There was no evidence that his case would have been sooner disposed of had he not been so removed.

      Held, not sufficient to sustain an action of false imprisonment against such court officer.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 17, 1886.
    Appeal by plaintiff from judgment entered on verdict in favor of defendant, directed by the court.
    Action for false imprisonment brought by the plaintiff against the defendant who, at the time of the matters complained of, was an assistant to the clerk of a police court in this city.
    The plaintiff alleged in his complaint, that on April 12, 1884, the defendant, by the aid of a police officer, forcibly compelled him to enter a room adjoining a police court room in the twelfth ward of this city, in which criminals and those accused of crime are imprisoned while awaiting trial or hearing, and caused him to be therein imprisoned for about thirty minutes without any right or authority, and to his damage.
    Further facts appear in the opinion.

      Sackett, Lang, Reed and McKenna, for appellant.

      Gratz Nathan, for respondent.
   Per Curiam.

This action was brought to recover damages for false imprisonment. To sustain the action, plaintiff must prove an unlawful restraint of his liberty by the defendant.

Plaintiff was charged with an assault on a person engaged in erecting a telegraph pole in front of plaintiff’s premises, was arrested by a police officer, and taken to the police court by said officer, and was under arrest.

His imprisonment was caused by the arrest, such imprisonment continuing until his discharge. Whether he should be permitted to remain in the court-room or taken to an adjoining room where prisoners were usually kept, was within the discretion of the officer. He was in either place in custody.

The direction to the police officer to remove plaintiff from the court-room to the room kept for the confinement of prisoners, until his case could be heard by the magistrate, was not therefore an illegal restraint of plaintiff’s person. There was no evidence that plaintiff’s case would have been sooner disposed of if he had not been removed. He was only kept in the prisoners’ room a few moments, when he was brought before the magistrate and committed for trial. Plaintiff was just as much restrained of his liberty before the direction as after, the detention being in a different place.

It is clear, from all the evidence, that plaintiff’s conduct in the courtroom was such as disturbed the proceedings of the court, and it was the duty of the officers of the court to preserve order. The direction given by the defendant was simply the proper performance of that duty; and it is, to say the least, a novel proposition that the fact that the prisoner’s preference as to the particular place of his confinement was not consulted would give him a cause of action as against the officer selecting such place of detention.

The judgment must be affirmed, with costs.


text:
    ADELAIDE PRAEGER, Respondent v. WILLIAM A. MESTAYER, Appellant.

      Evidence.—Breach of contract of employment.

    In an action for breach of a contract to employ plaintiff in a theatrical company where there is a material conflict in the testimony of plaintiff and that of defendant as to the duration of the contract of employment, it is competent on the question of the credibility of defendant’s version, to show on his cross-examination that he had employed other members of the company for a stated period, as claimed by plaintiff he had employed her, and that such other member of the company had sued defendant and recovered his compensation.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided December 17, 1886.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff for the sum of $2,552.50 damages for breach of contract.
    The complaint alleged that the plaintiff was engaged by the defendant as a singer in the defendant’s theatrical company for a term of two seasons, to commence on the 12th day of May, 1884, at a salary of one hundred and twenty-five dollars per week; that she performed for the defendant until June 3, 1884, when she alleges she was denied the privilege of further performing for the defendant. The employment of plaintiff for a stated period was denied by defendant.

      Howe & Hummel, for appellant.

      Jas. D. McClelland, for respondent.
   Per Curiam.

The error alleged is the admission by the court on cross-examination of certain testimony of the defendant.

The issue on the trial was as to the terms of the contract between plaintiff and defendant. The questions allowed related to the terms of a contract by defendant with another person, and that such other person had sued him and recovered judgment.

The fact that he had employed other members of the company for a stated period, as claimed by the plaintiff he had employed her, was admissible upon cross-examination, as tending to affect the credibility of the witness’s version of the contract between the plaintiff and the witness; and the fact that such a contract had been made with another person of the company being competent, the other fact that such other person had recovered for his compensation was also, we think, competent on cross-examination.

The case is very different from O’Hagan v. Dillon (76 N. Y. 170), for in that case the evidence that was allowed could have no possible bearing on the credibility of the witness. We think no error was committed and judgment must be affirmed with costs.


text:
    ANDREW THOMPSON, Respondent, v. JEREMIAH C. LYONS, Appellant.

      Stipulation, mutuality of—Rescission of contract, mutual effect of.

    Where both parties to a contract sign a stipulation to the effect that the contract entered into by them was on the day fixed for its completion rescinded, such stipulation means presumptively a mutual rescission; and the party who made a payment to the other on account of the contract is entitled to recover it back. But damages as for a breach of contract—such as expenses of examining title—can neither be recovered, counter-claimed or recouped.
    Before Sedgwick, Ch. J., Van Yorst, and Freedman, JJ.

      Decided December 17, 1886.

      Appeal from judgment.
    Plaintiff and defendant entered into a contract whereby defendant agreed to convey to plaintiff certain premises, and plaintiff “ in consideration and payment thereof ” was to convey certain other premises to defendant, pay $1,900 in cash, and assume a mortgage existing on defendant’s said property. At the time of execution of this agreement plaintiff paid to defendant $500 of said $1,900. On the day fixed for the consummation of the contract defendant refused to complete. Thereupon plaintiff brought this action to recover said $500. Defendant denied his liability therefor, and pleaded a counter-claim of $442.65 for expenses incurred in the examination of title, surveying the property, and broker’s fees on the sale of his property.
    The cause was tried before the court without a jury.
    On the trial of the action the following stipulation was made and signed by the parties: “It is agreed
    that on the day of the closing of the title, tender was made by plaintiff, and that defendant refused to take the real estate mentioned in the contract, on the ground that the wall of the owner adjoining on the East side encroached between 8 and 12 inches on plaintiff’s land, and thereupon the contract was rescinded.
    “ It is further stipulated that plaintiff has demanded of defendant the $500, claimed in his complaint, and that payment thereof was refused, and that there is no dispute as to the amount of each respective item mentioned in defendant’s bill of particulars, but plaintiff disputes defendant’s right to recover any part thereof.”
    The learned judge before whom the cause was tried rendered a decision in favor of the plaintiff, on which judgment was entered adjudging that plaintiff recover of defendant $560, with $76.34 costs, amounting in all to $636.34.
    From this judgment defendant appealed.

      Souther & Stedman, attorneys, and C. E. Souther, of counsel for appellant, on the questions considered in the opinion, argued:
    I. The contract was not a “ contract of exchange,” and by this error the case below throughout was permeated and infected (Wilcox v. Randall, 7 Barb. 638; 3 R. S. [Throop’s ed.], 2197, § 3). Not being an “ exchange,” it was simply the instrument to an ordinary transfer of real estate (from defendant as vendor), where the consideration therefor (from plaintiff as vendee was to be part money and part land; and the case is wholly without evidence that “ it was mutually rescinded;” or that it “was agreed to he rescinded, and was rescinded by the parties; ” or that “ it was thereupon rescinded by mutual consent.”
    The breach by plaintiff conferred on defendant the right of rescission, “ thereupon the contract was rescinded,” i. e., of course, by defendant, as the only one having that right, and by him simply because if plaintiff could not pay for the thing, defendant need not continue bound to sell it.

      Kelly & Macrae, attorneys, and Wm. F. Macrae, of counsel for respondent, on the questions considered in the opinion, argued:
    I. The defendant having backed out from the contract, and the contract having been rescinded by consent, the parties were placed in statu quo, and defendant was hound to refund the $500 (Green v. Green, 9 Cow. 50; Thrasher v. Bentley, 2 T. & C. 309 ; Weaver v. Bentley, 1 Caines, 47; Utter v. Stuart, 30 Barb. 20 ; Cockroft v. N. Y. & N. H. R. R., 69 N. Y. 207; Tice v. Zinsser, 76 Ib. 552 ; Graves v. White, 87 Ib. 463 ; Bigler v. Morgan, 77 Ib. 312).
    BE. The defendant entirely mistakes the law applicable to this case in his insistence on his counter-claim for expenses. The rescission absolutely foreclosed and cut off any claim of that kind. It is only on the theory of a breach of an obligatory contract that defendant’s expenses could be counter-claimed, and as the rescission entirely abrogated the contract no breach can be assigned as against either party predicated thereon (Bigler v. Morgan, supra).

   Per Curiam.

The stipulation made and signed by the parties showed that the contract was rescinded. This presumptively meant a mutual rescission, and, in the absence of evidence rebutting the presumption, justified the finding that the rescission was by mutual agreement. This being so, although the contract was not strictly one for the exchange of real estate, the plaintiff became entitled to recover back what he had paid on account of the contract and the defendant could not maintain recoupment. There cannot be a rescission in part and an affirmance in part. The learned judge below was therefore right in the determination made by him.

The judgment must be affirmed with costs.


text:
    JOHANNA BERNHARD, Respondent, v. MARY S. McMASTER, et al., as Ex’rs., Appellants.

      False statement by vendor as to value, when no defense to obligation arising out of contract.

    A mere false statement as to the value of certain property, although it may have induced a contract for the purchase, does not, by itself, constitute a defense to an obligation arising out of such contract, in a controversy between parties bearing no other relation to each other than such as arose from the contract.
    Before Sedgwick, Ch. J., Freedman and Ingraham. JJ.

      Decided December 17, 1886.

      Appeal from judgment entered upon the report of a referee.
    The plaintiff sued upon a bond given to secure part of the purchase money of land in Virginia. The defendants set up a counter-claim of $20,000 damages for fraud.

      Alexander Thain, for appellants.
    — I. The referee erred in disallowing defendants’ counter-claim, because of the false and fraudulent representations made by plaintiff to McMaster as to the value of the property in Virginia. McMaster is now dead, which will account for the findings of the referee that there was no evidence that he relied solely upon plaintiff’s representation. The property was in a distant state, and his disposition to personally inquire after the value was met by the re-assurance which amounted to an artifice on the part of the plaintiff to prevent inquiry and the obtaining of knowledge by McMaster, that the property was as it had been represented (Chrysler v. Canaday, 90 N. Y. 279). Each party did not stand upon an equal footing in respect to knowledge. Plaintiff’s agents asserted in language indicating a claim of actual knowledge of values which could not be construed into an expression of opinion only.
    The case of Simar v. Canaday (53 N. Y. 306), is directly in point. By this case it is also determined that, whether the representations are a mere expression of opinion or an affirmation of fact to be relied upon by the vendee, is not a question of law for the court, but to be determined as a question of fact. The case of Long v. Warren (68 N. Y. 426), is not in conflict with this doctrine but rather in confirmation of it. In the case of Ellis v. Andrews (56 N. Y. 83), the doctrine is reiterated, that a. false statement of value alone is insufficient upon which to predicate an action for damages, but even that case was decided by a divided court and by a bare majority; the reporter taking pains to call attention to the distinction between that case and that of Simar v. Canaday by a foot note.
    Furman v. Titus (40 Super. Ct. 284), is put expressly on the ground that false representations as to value are not actionable where the vendee has an opportunity to examine the property, and to judge of its value. The question was not touched upon in McMillan v. Arthur, 98 N. Y. 167. In Van Epps v. Harrison (5 Hill, 63), held that representations that land was level and required no grading, &c., were actionable where the representations were made in New York city and the property near Albany. Gordon v. Butler (106 U. S. 553), was an action brought to recover damages for alleged fraudulent representations as to value, and the court decided that the complaint should have been dismissed. The facts in that case show that from the language used, the parties intended only an expression of opinion, as that the statements made were to the best of their belief only. In commenting on that case and some others, the court of appeals in Hickey v. Morrell (102 N. Y. 454), say:— “ But in none of them is it denied that if the person making,the statement or expressing the opinion had, at the time, knowledge of its falsity, the action would lie.” In that case the court sustained the right of the plaintiff to recover damages where goods had been destroyed by fire, after representations made by the warehouseman by circular in the city of New York, to a resident of the same city, that the warehouse was fire-proof. The defendants here invoke the well established principle that he who asserts as the truth that which he does not know to be true, is equally hable with one who makes a statement which he knows to be false. But in the case at bar, defendants’ testator was indr ced to refrain from inquiries as to the value of the property he was to receive, by renewed assurances that he might rely upon thé former representations made to him.

      Roger Foster, for respondent.
    I. Case for fraud will not lie unless the party to whom the statement was made was influenced solely thereby in an action resulting to his damage (Watson v. Paulson, 15 Jurist. 1111; Wing v. Woolfolk, 116 U. S. 599 ; Long v. Warren, 68 N. Y. 426 ; Chrysler v. Canaday, 90 Ib. 272).
    II. The representations were in no sense fraudulent. They were merely false.
    IH. An action will not lie for a fraudulent statement as to value (Ellis v. Andrews, 56 N. Y. 83 ; Atwood v. Small, 6 Clark & Finnelly, 232, 448 ; Holland’s Jurisprudence [2d Ed.] 200). “ The rhetorical phrases of the vendor are not necessarily fraudulent. ‘ Simplex commendatio non obliged’” (Sandford v. Hanby, 23 Wend. 260 ; Starr v. Bennett, 5 Hill, 503 ; Haight v. Hoyt, 19 N. Y. 464; Slaughter’s Adm. v. Gersen, 14 Wall. 279 ; Gordon v. Butler, 105 U. S. 553; Veasey v. Doton, 3 Allen [Mass.] 380 ; Graffenstein v. Epstein & Co., 23 Kans. 443 ; 2 Kent’s Comm. 486). In Simar v. Canaday (53 N. Y. 298), there were false representations as to the price for which the land in question had previously been sold. Moreover, a statement that a mortgage is valuable is equivalent to an affirmation of the solvency of the mortgagor (See the case on appeal at the Bar Association, where the facts appear more fully than in the report). Chrysler v. Canaday (90 N. Y. 272), contains a few words by Judge Miller inconsistent with this well-settled rule. When the question is again presented to the court of appeals for decision, it is not likely that its members -will make such an innovation in the law. Bnt even if the language cited by the appellants stated the law correctly, it could not aid them. That requires the use of some artifice and the entire reliance of the vendee upon the representations as to value, to make the vendor responsible. Here, the referee has found that there was no artifice, that McMaster was not induced by the statements to forbear from inquiry, and that he was not induced solely thereby to purchase the land in question.
   Per Curiam.

As the appellants submit no evidence, but rely solely on the findings of the referee, and the said findings affirmatively show:—

(1) that there is no proof that the plaintiff made to David McMaster, before he purchased her property in Virginia, any representation which she believed to be untrue;

(2) that there is no proof that the plaintiff made to David McMaster, before he purchased her property in • Virginia, any representations with the intent to defraud him;

(3) that there is no proof that any artifice was em-. ployed by the plaintiff before David McMaster agreed to buy the said land, to prevent inquiry by him concerning said land; and

(4) that there is no proof that David McMaster did, on account of his reliance upon any representations made by the plaintiff, forbear from inspecting the said land before he purchased the same ; the only grievance left to the appellants consists of a false statement as to the value of the land.

Such a statement has never yet been held to constitute a defense to an obligation arising out of a contract thus entered into, in a controversy between parties bearing no other relation to each other than such as arose from the contract, and as long as the controversy is between such parties it makes no difference that the false statement as to value may have induced, or did induce, the contract. So mere inadequacy of consideration of itself is never proof of fraud in such a case.

Judgment must be affirmed with costs.


author: By the Court.—Sedgwick, Ch. J.

text:
    ANGELINE M. BROWN, Respondent, v. ALFRED S. PURDY, et al., Appellants.

      Physicians' liability for reporting a disease as small pox, and stating symptoms of the disease to an Inspector of the Health Board.

    Defendants were attending physicians of plaintiff, and one of them reported the case to the Board of Health as one of small pox. This occasioned the sending by that Board of an inspector to examine the case, and while the inspector was conducting the examination one of the defendants remarked to him, “Did you notice her breath; that was
    • what convinced me more than anything else.” Upon such examination the inspector formed the judgment that the plaintiff had small pox and thereupon directed her. removal to the small pox hospital. Under this direction she was involuntarily removed to that hospital. There was evidence given by the plaintiff herself as to her condition, and also evidence as to the exact appearance of an eruption which had broken out on her.

      Held, 1st. That the condition of the plaintiff at the time, as shown by herself, and the then appearance of the eruption, made a question of fact as to whether the disease was small pox, which question it was the duty of the inspector, imposed on him by law, to adjudge on, and his decision, whether right or wrong, was final, and afforded perfect immunity to him, and to those reporting the case to him, and those aiding Mm or acting under his direction; he acting on Ms own judgment; and a case of conspiracy to use, and have used, Ms power irrespective of whether there is a legal occasion for such use, not being presented. 2nd. Statements concerning the symptoms of the patient’s disease made by the patient’s attending physician to the inspector, which are in the direction of enlightening his judgment, and not an appeal to Mm not to act on his own observations and inferences, give no right of action.
    A mere omission by the patient’s attending physician to use ordinary skill in diagnosing the disease before reporting it to the Board of Health as a case of small pox, gives no right of action.
    Before Sedgwick, Ch. J., and Freedman. J.

      Decided December 30, 1886.
    Note.—The points on both sides were elaborate and exhaustive. They cannot be abbreviated with justice to the counsel or much benefit to the profession. They can be found in the library of the court.

      Appeal by defendants from judgment entered upon verdict for plaintiff, and upon order denying motion for new trial made upon the minutes.
    The' action was for damages from the alleged responsibility of the defendants, who were the physicians of plaintiff, to plaintiff as their patient, for her removal by the public authorities to the smaE pox hospital.
    The jury found for plaintiff.
    Lowery, Stone <6 Auerbach, attorneys, and Grosvenor P. Lowery and Francis Lynde Stetson, of counsel for appeEants.

      W. J. Marrin, attorney, and of counsel for respondent.
   By the Court.—Sedgwick, Ch. J.

In November, 1879, the plaintiff was taken involuntarily from her dwelling to the small pox hospital. This was effected by the action of a sanitary inspector, in conformity to the health law. The validity and regularity of his proceedings are not questioned in this case, excepting in one respect, namely, that when the inspector examined the plaintiff to ascertain if she had small pox, her appearance and symptoms did not justify him in thinking or deciding that she had.

If there was any case for his judgment, or any fact of appearance or symptom as to which a question of small pox or not could arise, his determination as to the legality or propriety of removal was final. The rule and its limitations are given in Underwood v. Green (42 N. Y. 140).

There was a case for his judgment in the eruption upon the skin of the plaintiff, and the history of the case as given by the plaintiff herself. It is clear to me, that the condition of the plaintiff, and particularly the eruption as shown by herself, after the exact appearance of the eruption had been ascertained, made the question, and would necessarily make it to any physician, of whether it was a case of small pox. The law imposed upon the inspector the duty of adjudging as to this question of fact, and his decision of it was final, and no action, even irrespective of the statute giving inspectors immunity from actions, could be maintained against him.

This action is in reality placed by respondent’s counsel upon the proposition that the defendants are liable for the inconvenience and pecuniary loss the plaintiff suffered from the conduct of the inspector, which we have considered not to be actionable.

As matter of proof in this case, the defendants were not present when the removal was made. They had no part or lot in the execution of the report made by the inspector. Immediately before it was made, and while the inspector was examining the case, one of the defendants was with him at the bedside, and said to him, “ Did you notice her breath ? That was what convinced me more than anything else.” And one of the defendants had reported the case to the Board of Health, as one of small pox, and this was the occasion of the inspector examining the case. I cannot see that this was a wrong to plaintiff. It was an address to the judgment of a public officer bound to exercise that judgment. It was in the direction of enlightening that judgment. It was not an attempt to prevent the judgment. It was not an appeal to the officer not act upon his own observations and inferences. It is admitted that the defendants acted in good faith and without malice. It is not at all a case of conspiring with a public officer to use his power, irrespective of whether there is the legal occasion of such an use.

It is to be observed that it cannot be maintained that the action of the officer was caused by anything said or done by the defendants. The cause of that action arose in the will "and judgment of the officer. Between the statements of the defendants and the forming of the officer’s judgment, there was not the relation of cause and effect.

Nor, as I view the case, can it be maintained that the defendants’ omission, if there were such an omission, to use ordinary skill as physicians, in coming to their opinions, was actionable under the facts in this case. There was no improper or hurtful treatment or medication, in pursuance of the opinions. These opinions led them to make an honest report to the Health Board. The statutes had made it their duty to report cases of contagious diseases. The performance of this duty was not part • of the functions of a physician in his relation to a patient, but rather to the public. My opinion is that in order to give the public the protection due to it, according to the intention of the statute, any physician that forms, in fact, an opinion that a patient has a contagious disease, is bound to report the case, whether he has or has not used ordinary professional skill and knowledge. A physician of skill in everything but cases of small pox, which happily are not numerous, may unexpectedly to himself be called to a case, which presents to him the appearance of small pox. It may be said that he can call in counsel. It cannot, however, be said that private counsel should be called in rather than such as the law has appointed. Certainly if he really thinks the case to be one of small pox, it is his duty to communicate his opinion to the public authorities who furnish skilled physicians peculiarly competent to pass upon the case. They are the experts that the law points out for the physician. The attendance of these- experts upon a patient can cause no injury, and thereafter, the responsibility rests solely upon the public officer.

For these reasons I am of opinion that the plaintiff had no cause of action, and that the complaint should have been dismissed.

Judgment and order appealed from dismissed with costs to abide event, and new trial ordered.

Freedman, J., concurred.


text:
    CHARLES M. FROST, Respondent, v. JOHN F. DE LURY, Appellant.

      Trial, conduct of—Evidence, non-objection to prior evidence, effect on objections to subsequent questions in the same line—False imprisonment, promoter of, when liable for acts and omissions of jailer.

    On the trial of this action for false imprisonment plaintiff was allowed to testify without objection, that he sent his child and wife to her father’s house, and to give testimony to the effect that this resulted from his arrest. He was then asked, “How long was she at your father’s house ? ” A general objection to this question was overruled. Held, that if the question was objectionable in itself, the defendant by not objecting to the matter immediately preceding, made it legitimate testimony.
    The plaintiff, having testified that after he was locked up he made an effort to get the .attention of somebody,- was asked, “What did you do?” an objection to which was overruled. He answered, “I rattled on the door, made all the noise I could to attract attention. There was no heed paid to it by any one.” Held, that as the answer described a usual concomitant of an imprisonment, and did not imply that the jailer’s omission was a personal wrong on his part, there was no error in the admission of the evidence.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided December 30, 1886.
    Appeal by defendant from judgment entered on verdict of jury and from order denying motion for new trial.

      Action for damages for malicious prosecution and false imprisonment.
    The facts appear in the opinion.

      Howe & Hummel, attorneys, and of counsel for appellant, on the questions considered in the opinion, argued:
    I. It was error to permit plaintiff to show that in consequence of being out of employment he was compelled to send his wife to her father’s, and was deprived of her society for ten months. Even if the plaintiff’s sending his wife to her father’s house tended to show damages, no such damages were claimed in the complaint, and therefore could not be proved on the trial (Moloney v. Dows, 15 How. Pr. 265; Jutte v. Hughes, 67 N. Y. 271; Parsons v. Sutton, 66 Ib. 96 ; Vanderslice v. Newton, 4 Ib. 132 ; Stevens v. Rodger, 25 Hun, 54 ; Havemeyer v. Fuller, 60 How. Pr. 316 ; Barnard v. Benoind, 19 Alb. L. J. 77 ; Squire v. Gould, 14 Wend. 159 ; Strang v. Whitehead, 12 Ib. 64). Even if this was an element of damages, the damages are too remote (2 Greenleaf Ev. § 256, 13th ed.; Hoey v. Felton, 31 L. J. R. [N. S.] C. P. 105 ; 5 Law Times [N. S.] 354; 11 C. B. [N. S.] 142 ; Sedg. Measure of Damages, § 84, notes 1 and 2; Brown v. Cummings, 7 Allen, 507; Knight v. Wilcox, 14 N. Y. 413). This evidence cannot be considered harmless. It must have been considered by the jury in assessing cLefendant’s damages; and besides, it tended to arouse the prejudices and awaken the sympathies of the jury, and where such is the probable or even the possible effect of the admission of illegal evidence, it will be ground for reversal (Carroll v. Diemel, 95 N. Y. 252 ; O’Hagan v. Dillon, 76 Ib. 170 ; Anderson v. Rome, W. & O. R. R. Co. 54 Ib. 341; Brague v. Lord, 67 Ib. 499 ; Baird v. Gillett, 47 Ib. 186; Worrall v. Parmelee, 1 Ib. 519; Ayres v. Water Com’rs, 22 Hun, 299).
    II. It was error to permit the plaintiff to testify to the conduct of the prison officials towards him after he had been committed by the magistrate. The defendant had no control over the authorities in charge of the prison. They were city officials. He had given no instructions to these officials, and it did not appear that the defendant ever had any knowledge of the plaintiff’s place of confinement. It is well known that all prisons are conducted in pursuance of certain rules, and by law it is the duty of the magistrate to afford to every person brought before him an opportunity to send for counsel, &c. (Code Crim. Pro. § 189). If the magistrate or any of the prison officials violated this duty and refused this permission to the plaintiff when in their custody, surely the defendant could not justly be held accountable for their misdeeds. In actions for false imprisonment and like cases, jurors are apt to be led into finding verdicts by prejudice on the one hand or sympathy on the other, and it is well settled that in all cases, and especially in cases of false imprisonment and other actions of that class, all illegal evidence which tends to awaken the sympathies or arouse the prejudices of a jury cannot be considered harmless (See authorities cited on this head under Point I).

      William L. Clark, attorney, and of counsel for re- • spondent.
   By the Court.—Sedgwick, Ch. J.

The defendant had caused the arrest of the plaintiff without warrant. The plaintiff was the clerk of the defendant. The charge was that the plaintiff had stolen or embezzled about $19 from the defendant. The plaintiff was duly tried and was acquitted.

On the present appeal two exceptions may be noticed. The plaintiff, as a witness, testified without objection from defendant, that he sent his wife and child to her father’s house in consequence of the arrest, because he did not have sufficient means to support them, and that this was occasioned by his dismissal from the defendant’s employment and being unable to obtain any other lucrative employment. Then was asked the question, “ How long was she at your father’s house ? ” There was a general objection, which was overruled. If the question were objectionable in itself, the defendant had hy not objecting to the matter immediately preceding, made it legitimate testimony, leaving as the only inquiry on the question objected to, whether that question was calculated to make more specific the preceding testimony. If the defendant meant to turn the attention of the court to the inadmissibility of the earlier testimony, it should have been done in a specific way.

The other exception was taken after the plaintiff had testified that after he was locked up, he made an effort to get the attention of somebody. He was then asked, “What did you do?” The witness answered, against defendant’s objection, “ I rattled on the door, called and made all the noise I could to attract attention. There was no heed paid to it by any one.” The reason urged for the inadmissibility of the answer is, that the defendant was not responsible for the omission of the jailer to go to the plaintiff. The defendant was responsible for the damages flowing from the imprisonment and its usual concomitants, and the answer described such an imprisonment. It does not imply that the jailer’s omission was a personal wrong on Ms part.

The defendant’s counsel did not on the trial or on the appeal, meet the point of whether a party charged as plaintiff was could be legally arrested without warrant.

The defendant was not entitled to a new trial on any ground taken by the motion for a new trial.

Judgment and order appealed from affirmed with costs. ‘ •

Htg-bahlam, J., concurred.


text:
    SILAS W. COCHRAN, Appellant, v. BENJAMIN E. SMITH, et al., Respondents.

      Limited corporations—Liability of directors under §§ 14, 18, 21, chap. 611 Laws 1875—Eeturn of execution not necessary to—statute of Limitations as affecting.

    Under section 14 of chapter 611 of Laws of 1875, prohibiting the issue by a corporation organized under that law, of stock or bonds, except for money, labor done, or property.....at its fair value, an action cannot be sustained against the directors by a creditor of the company unless it appears that he, as such creditor, suffered damages from the acts of the directors violative of this section.
    After the appointment of a receiver of a corporation and Ms entry into possession, the directors are under no duty to file an annual report, under section 18 of said Act; and their omission so to do aifords no ground for an action against them.
    After the directors have, under their then view of the law (wMch was correct), failed to file an annual report for one year, their subsequent action under another and mistaken view of the law, of filing an annual report for a subsequent year, will not estop them from insisting that they were under no obligation to file either the report which they omitted to file or the one which they did file.
    Return of execution against the company unsatisfied is not a condition of a cause of action against the directors; such return does not prescribe the period at which the statute of limitations begins to run against an action based on the 14th, 18th, or 21st sections of said Act.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided December 30, 1886.
    Appeal by plaintiff from a judgment in favor of defendants entered upon a verdict directed by the court, and from an order denying a motion for a new trial.
    The complaint contained four causes of action: 1st, one based on a violation by the directors of the provisions of section 14 of chapter 611 of the Laws of 1875; 2nd, one based on section 18, requiring an annual report to be made and filed, it being alleged that such report was not made and filed within twenty days after January 1, 1881; 3rd, one for not keeping painted in a conspicuous position its name, with the word “limited;” and 4th, one for filing a false report on July 1, 1880.
    On the trial the third cause of action was abandoned.

      Samuel JE. Brown, attorney, and Tracy Gould, of counsel for appellant, in the question considered in the opinion, argued:
    I. In determining the correctness of the disposition of the case made by the court on the trial, every contested fact must be deemed established in favor of the appellant, who is also entitled to the most favorable inferences deducible from the evidence. And upon this appeal it must be assumed that the causes of action set forth in the complaint exist, and that defendants are liable thereon, unless they are barred by the statute of limitations (Clemence v. City of Auburn, 66 N. Y. 334; Rehberg v. Mayor, 91 Ib. 137-141). It must, therefore, be taken for granted that the defendants parted with the capital stock of the company for property at more than its fair value.
    II. Directors of limited liability companies, organized under chapter 611 of Laws of 1875 (as the Rockaway .Beach Improvement Company was organized) are merely trustees for the benefit of creditors. In the English statutes regulating like corporations, the corresponding officers are called trustees. So long as they violate no provision of the statute, so long as they see that none of the capital stock is issued except for cash or property at its actual and fair value (see § 14), and at the same time see that the total indebtedness does not exceed the amount of the capital stock (see § 22), there must be in their hands a fund with which to pay all creditors in full. It will be seen that this parting with the capital stock for property at more than its fair value is made the plaintiff’s first cause of action. To the direction of the statute above referred to (§ 14) no express penalty is attached. It is merely declaratory of the common law and the dereliction of the trustees in wasting and dissipating the trust fund makes them liable. To this liability—one growing out of the relation of the directors to the corporation’s creditors as trustees of the corporate property and existing at common law, not created by statute—the three years’ statute of limitation does not apply, and the court erred in holding that it did. The three years’ limitation does not apply, because § 14 of the Act, whose express provisions these defendants violated, does not, nor does any other part of the Act, or any other statute, “ impose a penalty or forfeiture,” or “ create a liability” for such violation. And it has been expressly held that the three years’ statute of limitations has only application in such cases to an action to recover a penalty or enforce a liability created by a statute (Brinckerhoff v. Bostwick, 99 N. Y. 185).
    III. There is another consideration which takes the present action out of the operation of the statute of limitation. As to all of the rights of action given by the statute itself, appellant could not have sued the defendants on his judgment against the company until after execution was issued on the same and returned unsatisfied. Execution was issued on said judgment December 19, 1888, and return was made thereon December 29, 1883, and filed January 7, 1884. So much of plaintiff’s cause of action as is contained in said judgment is therefore clearly outside the statute.
    IV. The filing of the false report, January 19, 1882, also takes the cause of action thereon out of the operation of the statute. Even if, as the trial court held, there was no duty on the part of the defendants to file a report at that time, yet they having filed one, and plaintiff having relied on that to determine the limitation of his action, the defendants are estopped from asserting that there was no duty on theii part to file the same.

      W. M. Safford, attorney, and Horace Russell, of counsel for respondent Kidder, and Billings & Cardozo, attorneys, and Coles Morris, and Michael H. Cardozo, of counsel for respondent Attrill, on the questions considered in the opinion, argued:—
    I. The second cause of action is to charge respondent as a director under § 18 of the statute, because the corporation did not within twenty days after January 1, 1881, make and file an annual report. A receiver having been appointed in August, 1880, and having filed his bond and taken possession of the property of the company, no report was necessary after that date, and no liability can be predicated upon the failure to file such report (Huguenot National Bank v. Studwell, 74 N. Y. 621; Bonnell v. Griswold, 80 Ib. 128; Bruce v. Platt, 80 Ib. 379; Losee v. Bullard, 79 Ib. 404; Kirkland v. Kille, 99 Ib. 390; Slee v. Bloom, 19 Johns. 456; 20 Ib. 669 ; Penniman v. Briggs, Hopkins, 300; 8 Cow. 387; Bank of Poughkeepsie v. Abbotson, 24 Wend. 479). The cases of Brinkerhoff v. Brown (7 Johns. Ch. 225), Bradt v. Benedict (17 N. Y. 93), Sanborn v. Lefferts (58 Ib. 179), are distinguishable.
    This being a penal statute, the courts will not undertake to enforce it, except in a case that is clearly within the meaning and intent of the statute as well as within its letter. It has been shown that the spirit of the statute does not demand a report under the circumstances of this case. The object of the Act should control. “ Even though the letter of the Act might apply to the case, if it were not within the mischief intended to be prevented or remedied by it, mor within its spirit and intention, it is not within its provisions ” (Bronson v. Dimock, 4 Hun, 614; Briggs v. Easterly, 62 Barb. 51).
    n. The' fourth cause of action is based upon § 21 of the statute, for filing an alleged false report on July 1, 1880, stating that the amount of the capital stock was paid in full. It is well settled that actions brought upon this section must be brought within three years after the cause of action accrues (Merchants’ Bank v. Bliss, 35 N. Y. 412; Code Civ. Pro., § 38, subd. 3). The cause of action accrues when there is a concurrence in point of time of a false report, and the existence of a debt (Veeder v. Baker, 38 N. Y. 160; Losee v. Bullard, 79 Ib. 404).
    The debts of this corporation were all created prior to the appointment of a receiver in August, 1880. This suit was not commenced until January, 1884, and not within three years.
    m. Each defendant appearing by a separate attorney and interposing a separate defense, and all succeeding, each was entitled to a separate bill of costs (Royce v. Jones, 23 Hun, 452; Williams v. Cassady, 22 Ib. 180; Del., L. & W. R. Co. v. Burkard, 40 Ib. 625).
   By the Court.—Sedgwick, Ch. J.

I shall refer only to such grounds as the learned counsel for appellant has presented for the reversal of the judgment. The action was brought by plaintiff claiming as a creditor of the Boclcaway Beach Improvement Company (Limited), against the defendants as directors of that company, which was formed under chapter 611 of the Laws of 1875, for default, as claimed by the complaint, in their conduct as directors.

The appellant’s counsel argues that the first cause of action, in the complaint, is for a violation of the 14th section of the Act, in their parting with the capital stock of the company for property at more than its fair value. If, which is more than doubtful, the plaintiff has any cause of action against directors, under the statute which declares that no corporation organized under this act shall issue either stock or bonds except for money, labor done, or property actually received for the use and legitimate purposes of such corporation, at its fair value ” (§ 14), it is clear that there were no damages to the plaintiff, as creditor, from the acts of the directors. The transaction, in fact, benefited the creditor to the extent of the value of the property acquired by the company, while, on the other hand, there is no proof or presumption that if the stock had not been issued as it was issued, any other or greater value, especially not the nominal amount, could have been procured for it. For this reason it becomes immaterial to examine whether the action under this statute may be brought within six years from the time the cause of action accrued. It may, however, properly be said that the case is not like Brinckerhoff v. Bostwick (99 N. Y. 185). If the defendants were liable, they would be so, not because they wasted the fund, that is, the capital stock, as is argued, for there is no proof that, in a pecuniary sense, the transaction was injurious to creditors, but because they took part in an act fordidden by the statute.

The next proposition is that the three years’ limitation applied by the court below to all the causes of action, was not to be calculated-until after the return unsatisfied of the execution issued upon the judgment which the plaintiff had recovered against the company. The counsel did not cite any provision of the statute which makes the return of an execution unsatisfied a condition of a cause of action against directors. I have not been able to find such a provision.

The court below held that the directors were not bound to file an annual report, at any time subsequent to August 20, 1880, because on that day a receiver of the company had been duly appointed, and who had, within three days thereafter, gone into possession of all the property of the company. For this reason the court held that the defendants were not liable for not filing a report for 1881. They did, however, file a report in 1882, in the form provided in the statute for annual reports. For the appellant it is argued that the filing of this report estops them from now claiming that it was not their duty to file a report in 1881. The directors, not having a duty to file a report after all the property of the corporation has been transferred to a receiver, does not depend upon any view the directors may take of the facts, but depends upon the condition of the company in fact. When this condition exists, the law pronounces that the filing of further reports would be useless, for they would not serve any purpose that the statute had in view in providing for annual reports. The fact that, in 1882, the directors took a different view of the law, is immaterial to the question of their duty in 1881.

The counsel for respondents argued as to other propositions than those that have been now examined. What has been said has referred to all the questions raised by the appellant. It is unnecessary to answer any others.

Judgment affirmed, with costs. Any question as to defendants having costs severally may be raised upon settlement of the order to be entered on this decision.

Freedman, J., concurred.


text:
    ALFRED E. J. TOVEY, Respondent, v. JOHN L. CULVER, et al., Appellants.

      Complaint in action against trustees by reason of not filing report—Insufficiency of averments as to indebtedness of corporation—Averments descriptive of judgment recovered insufficient.

    An averment in a complaint, after setting forth the recovery of a judgment by plaintiff against a corporation (of which defendants were trustees) for $120.40, “that the said judgment was obtained for services rendered by the plaintiff to said corporation in publishing their advertisement, for which services the said corporation agreed to pay the sum of $97,50,” is merely descriptive of the judgment, and not an averment that in fact services were rendered to the corporation.
    Under a complaint which contains no other averments as to ar y indebtedness by the corporation to the plaintiff, evidence—in an act on brought against the trustees of the corporation (being a manufacturing company) on the ground of their failure to file an annual report at á time when the plaintiff was a creditor of the corporation—of the rendition of services to the corporation and of the sum agreed to be paid therefor, is inadmissible.

    Before Sedgwick, Ck. J., and Ereedmak, J.

      Decided December 30, 1886.
    Appeal by defendants from judgment entered on verdict of jury, and from order denying motion for new trial.
    The action was against the defendants as trustees of a manufacturing company, for failing to file an annual report, at a time when the plaintiff was, as he claimed, a creditor of the company on account of services rendered.

      E. P. Johnson, attorney, and of counsel for appellants, on the question considered in the opinion, argued:
    I. The complaint was insufficient. It is well settled that in an action of this nature the recovery of a judgment against the corporation is not even prima facie evidence of any indebtedness, and that the judgment roll is inadmissible (Miller v. White, 50 N. Y. 137; Esmond v. Bullard, 16 Hun, 65; McHarg v. Eastman, 7 Robt. 137). The allegation in the amended complaint that on a certain day the plaintiff recovered a judgment against the corporation, which judgment was obtained for services, etc., amounted to nothing more than a brief statement of the substance of the judgment roll. There is no allegation of any fact. It nowhere states that the plaintiff, at the request of the corporation, rendered any services, but merely that plaintiff recovered a judgment which purported to be for services. This might well be true and yet no services have ever been rendered. Assuming this point to be well taken, it was error to admit evidence of the services, and the complaint should have been dismissed (Tooker v. Arnoux, 76 N. Y. 397).

      Edward Grosse, attorney, and Henry Wehle, of counsel for respondents, on tie question considered in the opinion :
    I. Assuming that the exceptions were sufficient . to bring up for review the construction of the complaint, it is clear that the complaint sets forth a good cause of action, and was sufficient to admit all the proof offered. The amended complaint contains the unnecessary averment of the recovery of a judgment, but it does state the rendition of services by plaintiff to the company. The surplusage being disregarded, the complaint reads “ that services were rendered by the plaintiff to the corporation in publishing their advertisements, for which services the corporation agreed to pay $97.50.” The complaint is, therefore, sufficient even without invoicing the liberality of construction which justice, fairness, and common sense has introduced in modern practice. If it were a matter for argument, a reference to the Code would dispose of the same (Code, § 519; Allen v. Tatterson, 7 N. Y. 476 ; Alcott v. Carroll, 39 Ib. 436; Quintard v. Newton, 5 Rob. 72).

       Such a complaint does not contain facts sufficient to constitute a cause of action in such an action.

   By the Court.—Sedgwick, Ch. J.

On the trial the plaintiff offered testimony as to the services. The counsel for the defendants objected that the complaint did not aver that the plaintiff had rendered service. The objection was overruled.

The averments of the complaint on this subject were that the plaintiff had obtained judgment in a district court for $120.40 damages and costs; “that the said judgment was obtained for services rendered by. the plaintiff to said corporation in publishing their advertisement, &c., for which services the said corporation agreed to pay the sum of $97.50.”

I am of opinion that the averments as to service are descriptive of the judgment that was entered, and not an assertion that in fact the services were rendered. As they are parts of a description, it cannot be said that the complaint avers argumentatively that services were rendered, for when properly used as description, the defendants could not reason that they were meant to be used for another purpose.

Indeed all the allegations as to the judgment were irrelevant to the plaintiff’s supposed cause of action. The defendants were not held to meet them, and as they could not be divided, they were not held to meet any part of them.

The judgment and order appealed from are reversed, and new trial ordered with costs to abide the event.

Freedman, J., concurred.


text:
    HENRY K. SOUTHWICK, Respondent, v. THOMAS MOORE, Appellant. WILLIAM M. SHAFFNER, Respondent, v. THOMAS MOORE, Appellant.

      Clerks of courts as receivers—Waiver of written consent to appointment of, and of want of notice of application for a receiver—Adjudication based on legality of appointment, effect of.

    The clerk of this court was appointed a receiver in supplementary proceedings without the written consent of all parties. He thereafter claimed, to the knowledge of the judgment debtor, to be the owner as receiver of two judgments recovered by the debtor in the supreme court. He then presented a petition to the supreme court praying that the amount of the lien of the debtor’s attorney on such judgments be ascertained and fixed. Such proceedings were had that the referee’s report fixing the amount of the lien was confirmed by the court. The judgment debtor was a party to this proceeding.
    Held, 1st. That a fundamental question in the proceeding in the supreme court was as to the right of the petitioner to take proceedings as receiver; that the adjudication in those proceedings involved an adjudication that the petitioner was legally appointed, and the judgment debtor was bound thereby. 2nd. That the statutory condition of a consent in writing could be waived by the judgment debtor, and he having received a benefit from the supreme court proceedings based on the order appointing a receiver, could not object to it, and had waived the statutory limitation made for his benefit, as also the want of notice of the application for a receiver.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 30, 1886.
    Appeals from orders denying defendant’s motions to vacate orders appointing a receiver in proceedings supplementary to execution.

      Arnoux, Mitch & Woodford, attorneys, and William H. Arnoux and John Van Voorhis, of counsel for appellant.

      Theodore F. Miller, attorney, and of counsel for respondents and for receiver.
   By the Court.—Sedgwick, Ch. J.

The objection taken to the orders appointing Mr. Boese a receiver is, that the Code forbids the appointment of the clerk of a court as receiver, “ except by the written consent of all parties” (§ 90, Code Civ. Pro.) After the orders were made, the receiver claimed, to the knowledge of the judgment debtor, that he, as receiver, ivas the owner of two judgments recovered by the debtor in the supreme court. The receiver made a petition to the supreme court, that the amount of the lien of the debtor’s attorneys upon such judgments be ascertained and fixed. The court confirmed the report of the referee, fixing the amount of the lien. It is shown by the affidavits before us that the appellant, the judgment debtor, was a party to this proceeding. The attorney for the receiver makes an affidavit that he is advised and believes that the appellant appeared in the proceeding referred to. This is not denied by any affidavit. The affidavit of the appellant avers with particularity the various steps taken in the proceeding and its result, and says that this sum has not been paid by the receiver or anybody else, nor has any part of it been paid.” The affidavit does not assert that the appellant did not have notice of the proceedings or did not appear in them. There can be no doubt that he was a party to the proceeding, and bound by the adjudication upon all the questions involved (Dwight v. St. John, 25 N. Y. 203; Riggs v. Pursell, 74 Ib. 370). A fundamental question was as to the right of the petitioner to take the proceeding as receiver. The adjudication was beneficial to the appellant, as it limited the amount of any appropriation of the proceeds of the judgments to the payment to his attorneys for their services. Therefore, it has been already adjudicated as to the appellant, that Mr. Boese was receiver, and the appellant, having taken an advantage from the order of appointment, cannot now object to it.

He has waived any right that was based upon the statutory limitation made for his benefit (Phyfe v. Eimer, 45 N. Y. 104, and the cases there cited). That limitation being conditional upon an absence of a consent in writing, does not take from a party the power of waiving it, nor annul the consequences of any waiver that he may make (Carroll v. Charter Oak Ins. Co., 10 Abb. Pr. 166; Pierrepont v. Barnard, 6 N. Y. 279).

It is not necessary to examine further the facts to ascertain if the appellant has not, in other ways, so recognized the validity of the order as to prevent his now objecting to it.

What has been said is to be applied to another objection, that the appellant did not receive notice of the application for the appointment of a receiver.

The order appealed from is affirmed, with $10 costs.

Freedman, J., concurred.


author: By the Court.—Freedman. J.

text:
    PATRICK KELLY, Appellant, v. FOSTER B. BROWNLOW, Respondent.

      Constitutional law—Executions, act limiting time to issue, when constitutional—Code Civ. Proc. § 572, as amended, applicable to executions against the person, though no order of arrest, with a single exception, and to eases where execution against the property was returned before the passage of the amendment—As to excuse for not issuing.

    A statute limiting the time within which an execution against the person may be issued on a judgment does not impair a vested right, but only affects the remedy. There is no constitutional objection therefore, to its being made to apply to executions on judgments recovered before the passage of the act, provided the time limited is computed from the passage of the act, in the cases where the prescribed limit had begun to run before the time of its passage.
    Section 572 of the Code of Civil Procedure, as amended by chapter 672 of the Laws of 1886, applies to all cases of execution against the person, irrespective of the question whether or not an order of arrest was in fact obtained, with the single exception of a case where the order of arrest can be granted only by the court.
    Chapter 672 of the Laws of 1886, amending § 572 of the Code of Civil Procedure, prescribing in effect that an execution against the person of the defendant must be issued within ten days after the return of execution against the property, must be construed in the cases of judgments recovered and executions against property issued thereon, returned before the passage of the act, as meaning within ten days after the passage of the act; and as thus construed it imposes a valid limitation of the time within which an execution against the person can issue on a judgment upon which execution against the property was returned before its passage, to ten days after such passage.

      Neither absence of attorney from the city, nor the institution of supplementary proceedings constitutes an excuse for postponing the issue of execution against the person beyond the time limited.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 30, 1886.
    Appeal by plaintiff from an order made at special term discharging the defendant from imprisonment under an execution against his person.

      I. Newton Williams attorney and of counsel for appellant, argued:
    I. There is no provision in chapter 13 Code of Civ. Proc., (which governs and regulates executions against the property and person,) limiting the time within which an execution against the person shall be issued after the entry of final judgment, or after the return of execution against the property. (See Title 3, §§ 1478 and 1288, Code Civ. Proc.)
    II. Section 572, Code Civ. Proc., as amended by chapter 672, Laws 1886, does not apply to this case, as no order of arrest has been granted in the action. Section 572 is one of the sections of chapter 7, Title I, Article II, of the Code, Chapter 7, is entitled: “ General Provisional Remedies in an action.” Title I, relates to arrest pending the action, and proceedings thereupon. This title has four articles, to wit: Article I. is: Cases where an order of arrest may be granted, and persons liable to arrest. Article II. is: Granting, executing and vacating or modifying the order of arrest. Article HI. is as to bail. Article IV. is as to charging and discharging bail. It will be seen that § 572 of the Code, being a part of Article H. of Title I. chapter 7, applies only where an order of arrest, a provisional remedy, has been invoked. In this case no order of arrest has been granted. Amendments to a statute are incorporated into the original statute, and must be read as if enacted with the original statute, and can effect no subject, except that covered by the original statute. Thus construed this section as amended only applies to cases where the provisional remedy of an order of arrest is invoked.
    IH. Prior to the amendment of 1886, to § 572 Code Civ. Proc., the plaintiff was under no duty to enter judgment, or to issue execution against the person, unless the defendant was in actual custody, under an order of arrest issued in the action. In this case, conceding the amendment of 1886 is applicable, the plaintiff had any time before the expiration of three months, from June 15, the date the act took effect, to issue the execution against the person of defendant (Schmit v. Heitner, 45 Super. Ct. 334; § 572, amended by Laws 1886 ; De Silver v. Holden, ante p. 1.) The execution was issued September 7, less than three months from the passage of the amendment.
    IY. The provisions of section 572 as amended aré not mandatory. It is discretionary with the court where no order of arrest has been issued in the action. Here the examination of defendant in supplementary proceedings was not concluded until August 12, 1886. Plaintiff has shown diligence, and has acted in good faith (De Silver v. Holden, supra).

    Y. This judgment was obtained prior to the amendment of 1886 to section 572 of the Code, and is not affected by that amendment. Statutes are not retrospective unless expressly made so by the legislature. This amendment applies only to cases commenced after June 15, 1886, except when judgment debtors were at the time of the passage of the act, under imprisonment, and not to this case (Dash v. Van Kleeck, 7 John. 477 ; Sayre v. Wisner, 8 Wend. 661).

      Goodrich, Deady & Goodrich, attorneys and of counsel for respondent, submitted no printed points.
   By the Court.—Freedman. J.

The motion for defendant’s discharge from imprisonment under the execution issued against his person, was based upon the provisions of § 572 of the Code of Civil Procedure, as amended by chapter 672 of the Laws of 1886. The amendment took effect June 15, 1886. The grounds of the motion were : (1.) that at the time of the issuing of the execution against defendant’s person more than ten days had elapsed since the return of the execution against defendant’s property; and (2.) that at the time of the issuing of the execution against defendant’s person more than three months had elapsed since the entry of judgment.

Prior to the amendment of 1886, the first ground did not exist in favor of any defendant, and the second ground was available only to a defendant in actual custody, by virtue of an order of arrest in the action, or upon a surrender in exoneration of his bail.

The amendment of 1886 abolished the requirement of actual custody in all cases, and otherwise enlarged the grounds upon which a discharge may be applied for and granted. One of the new grounds provided for is the neglect of the plaintiff to issue execution against defendant’s person within ten days after the return of the execution against defendant’s property.

In the case at bar, plaintiff-recovered a judgment against the defendant for personal injuries for $2804.92, on February 1, 1886. Execution against the property of the defendant was returned by the sheriff unsatisfied on May 25, 1886. Execution against the person of the defendant was issued on September 7, 1886.

Inasmuch as it thus appears that both the recovery of the judgment and the return of the execution against the property, took place before the passage of the amendment, and at a time when the plaintiff was under no duty to issue execution against the person within ten days after the return of the execution against the property, and within three months after the entry of the judgment hi cause the defendant was not in custody, the plaintiff’s time within which to issue execution against the person, should, under the decision of De Silver v. Holden (ante p. 1), be computed- from the day the amendment took effect, viz: June 15, 1886. When thus computed it will be found that, although the plaintiff did issue the execution against defendant’s person within three months after the amendment had taken effect, it was not done within ten days. This is quite a serious objection, for the language of § 572 as amended is, “ ... if the plaintiff . . . neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment ...”

It therefore remains to be seen whether the plaintiff showed reasonable cause for a denial of defendant’s motion. Section 572 is not peremptory. It authorizes in express terms a denial of the application whenever reasonable cause is shown why the application should not be granted.

What the plaintiff did show was that on June 7, 1886, he obtained an order for the examination of the defendant in supplementary proceedings; that the "examination of the defendant was not concluded until August 12; and that between the last-named day and the day of the date of the execution against the person, viz: September 7, plaintiff’s attorney was out of the city on his vacation.

The absence of the attorney from the city cannot be accepted as an excuse. Nor does § 572 recognize the institution of supplementary proceedings as an excuse for postponing the issuing of the execution against the person. Moreover the defendant showed that the supplementary proceedings were unnecessarily prolonged by plaintiff’s attorney, so that he, the defendant, although he never asked for an adjournment, was compelled to attend court on six different occasions. He also showed by affidavit that he verily believed that his attendance was thus compelled, in order to annoy him and to induce him to compel his wife to sign a deed for some real estate which he owned in Bermuda and which deed he had offered to the plaintiff on the first day of his examination, but which his wife had refused to sign.

Under these circumstances, if § 572 applies to plaintiff’s case at all, the learned judge who made the order appealed from, may be deemed to have held, and to have very properly held, that reasonable cause was not shown for a denial of defendant’s application.

The last question to be considered therefore is whether § 572 as amended applies to plaintiff’s case at all.

The plaintiff contends that it does not, (1.) because the judgment was recovered and the execution against the property returned prior to its amendment, and the defendant was not then in actual custody, and (2.) because no order of arrest was ever granted in the action.

As to the first point it may be conceded that a statute is not to be construed to operate retrospectively, so as to take away a vested right. The cases of Dash v. Van Kleeck (7 John. 477), and Sayre v. Wisner (8 Wend. 661), which were cited by the plaintiff, enforce this doctrine, but go no further. At the same time it must also be conceded, as it was conceded in the case last referred to, that it is strictly within the reason of the said rule of construction to hold that a statute of limitation, containing upon its face no exceptions, may be made to apply to cases already existing, provided the limitation is computed from the time the statute takes effect. This qualification is especially applicable to statutes which do not directly affect a vested right, but only the remedy upon it. A limitation of time within which an execution against the person may or must be issued, is a statutory provision of this character. It affects only the remedy.

A construction of the statute, therefore, under which the running of the statute is computed from the time the statute went into effect, does not impair any vested right. Under this rule of construction the plaintiff was bound to issue his execution against defendant’s person within ten days after the 15th of June, 1886.

As to the second point the plaintiff contends that, because § 572 is a section contained in Title I. of chapter VII. of the Code of Civil Procedure, which title relates to arrest pending the action and the proceedings thereon, it should be construed to apply only to cases in which an order of arrest has been obtained. This may be freely admitted to be a close question. But as the language of the section as amended does not show the limitation contended for, and the limitation cannot be imposed upon the section without the interpolation of words which the legislature did not see fit to insert, and in as much as the words “ in any event,” if effect is to be given to them, apply to all cases indiscriminately, and the inference is not an improbable one that the legislature meant to provide for all cases of executions against the person irrespective of the question whether or not an order of arrest was in fact obtained, with the single exception of a case where an order of arrest can be granted only by the court, the point contended for should be decided against the plaintiff.

The order should be affirmed with ten dollars costs and disbursements.

Sedg viok, Ch. J., and Ingraham, J., concurred.