author: Daniels, J.:

text:
    JOHN JAY, Receiver, Appellant v. WM. H. DE GROOT and others, Respondents.

      Foreign insurance companies—effect of failure of, to comply with State laws—when estopped from setting up such failwre—Decision of motion — effect of—who bound by.

    Where the receiver of an insurance company, dissolved by an order of the court, entered into a contract in the State of New Jersey with a foreign insurance company, for the reinsurance of the outstanding risks of the dissolved company, which contract was ratified and approved by an order of the court; held that the foreign company would be estopped from alleging, in its own defense, that the contract was made in violation of the laws of this State, relating to foreign insurance companies; and that, as it would be liable upon the contract, it was entitled to insist upon its fulfillment upon the part of the receiver.
    Where the court allows any person to appear and be heard upon the argument of a motion, in the decision of which he is interested, such hearing is as effectual as though such person had received notice of the motion, and had been named as a formal party to it; and he is fully concluded by the disposition which the court may make of such motion.
    Appeal from an order denying a motion to enter judgment for a deficiency arising on the sale of certain mortgaged property.
    The Mechanics’ Insurance Company of New York, was dissolved by an order of this court, December 7th, 1855, and the plaintiff appointed as receiver, with directions to reinsure the outstanding risks of the company, and, in default of cash to pay for such reinsurance, to assign certain assets of the company in payment thereof.
    The receiver made such a reinsurance with the Equitable Eire Insurance Company of London, and specifically assigned, among other assets, a bond and mortgage of William H. and Theodore R. B. De Groot for $3,000, as security, and the assignment was confirmed by this court.
    This assignment was known, at the time of its making, to the said mortgagors and Alex. McCotter and other directors of the late company; and the assignment contained a clause, that, at any time that it might elect, the Equitable Insurance Company should have absolute possession of the said bond and mortgage, but in the meanwhile the receiver should collect it and pay over the proceeds.
    The Equitable Insurance Company now' demands the absolute assignment by the receiver of the said bond, and mortgage, and of the decree entered in this action on the foreclosure thereof by the receiver, with the power of entering and collecting the judgment for deficiency which is due thereon for $2,111.
    Objection is made to this claim of the Equitable Insurance Company by the defendants in this suit, who were the original mortgagors, on the allegation that after the reinsurance and the assignment, and during the pendency of the said foreclosure, the receiver made some agreement with the mortgagors, by which, if they would cause to be paid some claims against the late company, he would desist from the further prosecution of this suit.
    Other facts are stated in the opinion.

      Charles E. Whitehead, for the appellant.

      Levi S. Chatfield, for the respondents.
   Daniels, J.:

Upon the merits of the case, as they are shown by the affidavits, no good reason appears why judgment for the deficiency, arising on the foreclosure sale of the mortgaged property, should not be entered. Eor as the contracts for reinsurance, for the payment of the premiums of which the mortgage was assigned to the Equitable Insurance Company of London, were made in New Jersey, and ratified and approved by the court, that company would have been estopped from alleging in its own defense, that they were made in violation of the laws of the State of New York, concerning foreign insurance companies. Consequently, it would have been liable upon them, even if they were in form made in New Jersey in order to evade the requirements of the laws of this State.

The fact that they were so made, could not have been shown for the purpose of securing its own immunity from liability by that company. For that reason, it had a right to require payment of the stipulated premiums, after the securities for that purpose had been assigned and delivered to it. And that right could not be defeated by the unauthorized and unwarranted agreement made between the receiver, from whom the securities were acquired, and the debtors liable for their payment.

But it appears from the motion papers returned upon the appeal, that judgment for the deficiency was at one time entered by virtue of the order of the court, made on confirmation of the report of sale. Afterward, that judgment was set aside on the defendants’ motion, and the order setting it aside was affirmed on appeal by the General Term. On the argument of that motion, Mr. Chat-field swears that Mr. Whitehead was heard, both for the receiver and also for the Equitable Insurance Company of London, and used an affidavit made by Holbrook, the agent of the latter, in opposition to it. De Groot swears to the same thing, and also to the further fact, that the company appeared by its attorney, and was heard at the General Term, on the appeal taken from the order, setting aside the judgment.

Darling, to a slight extent, corroborates these statements by the fact sworn to by him, that the plaintiff used, in opposing that motion, an affidavit made by Holbrook. And that it was so opposed by the company is only denied by Holbrook. But while he denied it, he stated the further fact, which throws some slight doubt upon the effect of the denial, that he requested his attorney to obtain a rehearing of the motion, so that he might present the facts of the case to the court, but the application for the rehearing was denied. Hpon these affidavits, the preponderance as to the fact, is decidedly against the present motion; so much so, that it must be now assumed, that both the plaintiff and the Equitable Insurance Company of London, were heard in opposition to the motion, made to set aside the judgment which had been entered for the deficiency.

And, on that hearing, all the facts could have been shown, for anything now appearing to the contrary, just as well as the single affidavit made by Mr. Holbrook.

There must have been an opportunity for a full and complete hearing, as long as the insurance company was allowed to be heard at all. And it was its own fault if it neglected to show anything, then existing, which would have constituted either a legal or equitable answer to the motion. This hearing was as effectual as though the company had received notice of the motion, and had been named as a formal party to it, for the only object of those forms is, to secure to the party, an opportunity to be heard in a proceeding taken to affect his rights. And that was fully secured by the opportunity which was given to the company, and made use of by it, not only to produce affidavits and be heard on the motion itself, but afterward, also, on the argument of the appeal taken from the order, made when the motion was decided.

This made the company an. actual party to the motion, with all the advantages, as well as the disabilities, resulting from that relation to it. Among the latter is the circumstance, that a motion once decided, is ordinarily final on the matters involved, unless leave be given or obtained, to present the same matter afterward, for reconsideration and decision. This was held to be the effect of such a proceeding in Dwight v. St. John And the company, having, and also availing itself of, the opportunity to be heard as a party to it, is fully concluded by the disposition which was then made of the judgment now desired to be entered again.

The order appealed from was rightly made, and it should be affirmed with ten dollars costs, besides disbursements on the appeal.

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

Order affirmed.

       25 N. Y., 203.

       Castle v. Noyes, 4 Kernan, 329.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    HENRY H. RICHARDSON, Appellant, v. WILLIAM A. VIRTUE and CHARLES H. YORSTON, Respondents.

      Malicious Prosecution—-malice and want of probable cause of prosecution necessw'y to maintain action for— Advice of counsel.

    In an action for malicious prosecution, malice and want of probable cause for the prosecution, must be affirmatively shown. The bona fide acts of a party, on advice given by counsel after a full and fair statement of the facts, are evidence of probable cause, however erroneous the opinion may be.
    This action was brought to recover damages for a malicious arrest of the plaintiff by the defendants, in an action brought in the Supreme Court of Rhode Island. The defendants were book-publishers in New York, and employed the plaintiff to take charge of their store in Providence. The plaintiff, after he was discharged from defendants’ employ, demanded the return of certain books of considerable value, and the payment of a balance, alleged to be due him on book account, of about $314. The defendants refused to comply with this demand, and the plaintiff brought suit, and the defendant Torsion was arrested and gave bail. Suit was then brought by the defendants against the plaintiff, in which plaintiff was arrested, and, being unable to furnish bail, remained in jail one hundred and forty days. The two cases were tried together, before an auditor, and resulted in a judgment in favor of plaintiff.
    This action was tided before a referee, who found that the defendants had acted in good faith in bringing -their suit against this plaintiff, and directed that the complaint be dismissed.

      R. H. Underhill and James Hickey, for the appellant.
    The referee erred in finding that to sustain this action, there must be. clear and satisfactory proof that the plaintiffs (the defendants here) were fully aware that there was no debt due to them. (Besson v. Southard, 10 N. Y., 236; Bird v. Line, 1 Comyn, 190; Golin v. Wilcox, 2 Wils., 302; Austin v. Debnam, 3 B. & C., 139; Wentworth v. Bullen, 9 id., 840; Dronefield v. Archer, 5 B. & Ald., 513; Macfarlan, v. Ellis, 1 Fos. & Fin., 288 ; Brown v. McIntyre, 43 Barb., 344.) . If defendants’ belief, that the plaintiff owed them the sum stated, arose from defendants’ negligence, it did not excuse the arrest. (Grinell v. Stewart, 12 Abb., 220; Pierce v. Thompson, 6 Pick. [Mass.], 193.) Legality of imprisonment not material. (Pangburn v. Bull, 1 Wend., 345; 17 Ala., 832; 8 Ohio, 548; 18 Ala., 302; 4 Serg. & R., 10 ; 13 id., 54.)

      Wm. P. Chambers, for the respondents.
    Plaintiff must show: 1st. Want of probable cause; 2d. Malice; 3d. Termination of prosecution in his favor. (McKown v. Hunter, 30 N. Y., 627; Miller v. Milligan, 48 Barb., 36; Vanderbilt v. Mathis, 5 Duer, 304; Besson v. Southard 10 N. Y., 236; 1 Hilliard on Torts, 416, 420, § 10; Foshay v. Ferguson, 2 Denio, 617.) Advice of counsel, fairly given and acted upon, is an absolute bar to action for malicious prosecution. Ravenga v. Mackintosh, 2 Barn. & Cress., 693 ; Stone v. Swift, 4 Pick., 389 ; Hall v. Suydam, 6 Barb., 83.)
   Brady, J.:

This is an action for malicious prosecution. The evidence shows that the plaintiff was in the employment of the defendants, having-charge of what is called their Providence agency, in Providence, Rhode Island. They became dissatisfied with his mode of conducting their business, and called upon him to make up his accounts. Several meetings were had on the subject of their differences, each making a claim against the other, but no settlement was arrived at. The defendant Torsion went to Providence in May, 1868, and at that time it seems, upon the plaintiff’s intimation that he was ready to settle, and while there, and soon after his arrival at plaintiff’s place of business, was arrested at the instance of the latter, and held to bail in the sum of $4,000, to appear. The defendants then commenced an action against the plaintiff, in which he was held to bail in $2,500, for his appearance. The defendant Torsion gave the necessary security, and was discharged, but the plaintiff, failing to procure it, was detained in prison for a considerable length of time. Prior to the commencement of the defendants’ action there were several interviews between them and their attorney, and the action was the result of such interviews and the advice of their counsel.

It was necessary for them to proceed by action, because the defendants’ claim, consisting mainiyof unliquidated damages, could not be set off in the action against them by the plaintiff. Imprisonment for debt was at that time authorized by the laws of Rhode Island, and resort to it was the usual and ordinary mode of pro- ■ cedure, although it was not necessarily so. It appears to have been the uniform practice there, also, to lay the damages in the writ, at double the amount of the claim, and the sheriff was directed to hold the defendant to bail to answer the complaint.

The bail required of the defendant, at the instance of the plaintiff, in his suit, was $4,000 ; and of the plaintiff, at the instance of the defendants in their suit, $2,500, as already mentioned. The defendants claimed $1,200, and upward, consisting of damages for a violation of the plaintiff’s contract, and moneys due from him.

Both parties, as suggested by the referee herein, were, however, uncertain as to the extent of the claim they held, and neither ■ was precise.

These actions, thus commenced, were tried together, and the auditor who heard and decided them, then gave judgment for the plaintiff herein, after deducting such claim as the defendants established against him. The recovery of the former was for the sum of $223.88.

It must be conceded that the imprisonment of the plaintiff was, under the circumstances, and, considered in reference to the result of the actions, a hardship ; but it was the fault of the remedy allowed. The defendants, having resorted to it, or employed it, are free from responsibility for the consequences, unless actuated by malice, and unless there was a want of probable cause for the prosecution. These are indispensable elements of the plaintiff’s case, and must be affirmatively shown. Proof of one, and the absence of the . other is not enough. They must concur.

The finding of the referee on this subject, is in favor of the defendants; and the evidence sustains the conclusions at which he has arrived. The testimony given, discloses perhaps the prevalence of much feeling between the parties, but that they both believed in the validity of the claims urged, there is no reason to doubt. The fact established by the conclusions of the auditor, was that they were indebted to each other, and, in giving judgment, he deducted from the plaintiff’s claim, what he found due from him to the defendants. Their claim was not therefore wholly groundless, nor was it made up after the arrest of defendant Yorston, for the evidence shows that it had been the subject of several interviews, as already mentioned, between the defendants and their attorney, prior to the defendant Yorston’s arrest, and was not changed in any respect, when enforced, or sought to be, by action. The arrest, which was at the suggestion of the defendants’ attorney, was not only not an extraordinary proceeding, but usual and customary, and the defendants have affirmed positively the absence of malicious motive or intent. The bona fide acts of a party, on advice given by counsel after a full and fair statement of the facts, is evidence of probable cause, however- erroneous the opinion may be. It may be that the rule, stated as governing these actions, is harsh. It may he that it would have been better to have held a man to a strict accountability, who, upon a claim made, deprived his debtor of his liberty, if he failed to prove his demand good, but such has not been the view of courts, and it is too late now to change it.

The exceptions taken during the trial which were not argued, or stated on the briefs submitted, but yet relied on, have been examined and found untenable.

The judgment must therefore be affirmed.

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

Judgment affirmed.

       Hall v. Suydam, 6 Barb., 83; Vanderbilt v. Mathis, 5 Duer, 304; Miller v. Milligan, 48 Barb., 36; Besson v. Southard, 10 N. Y., 236; McKown v. Hunter, 30 id., 627.

       Hall v. Suydam, 6 Barb., 83.


author: Davis, P. J.:

text:
    In the Matter of the Petition (under Chapter 338 of the Laws of 1858) of SAMUEL PHILLIPS to vacate an Assessment for Flagging Twenty-ninth street between Tenth and Eleventh avenues, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants.

      Chapter 838 of 1858 — Assessment—presumption as to—Who may maintain action to remove cloud on title—Warrantor of tide—Designation of official paper:— accept-a/nce must be shown.

    The acts of making and confirming local assessments are taken for the public benefit by public officers, and are to be presumed to have been rightly performed.
    A grantor of land who has no longer any interest therein, cannot take proceedings to remove a cloud on the title. Nor does the fact that he has warranted the title justify him in bringing the suit.
    The mere fact that a newspaper is designated to publish the official proceedings, without proof of its acceptance of the appointment, is not sufficient to show that it is an advertising organ of the city. The designation was not necessarily an employment of the paper.
    Appeal from an order of Special Term, vacating an assessment. On December 3, 1873, Samuel Phillips filed in the Supreme Court the following petition:

      “ The petition of Samuel Phillips respectfully shows to this court:
    “ That at the times hereinafter mentioned, your petitioners were, and still are, the owners, respectively, of the lots hereinafter described.
    “ That on the 27th day of January, 1869, an assessment list was confirmed, whereby an assessment for flagging Twenty-ninth street, between Tenth and Eleventh avenues, in the city of Kew York, was imposed upon certain lots known and distinguished on said assessment list by the ward number 2,348, map.Ko. 3.
    “ That said assessment is irregular and void for the following reasons: v

      “First. That previously to the laying of the aforesaid pavement or flagging, the said street had been paved or flagged, and an assessment therefor levied upon said lots and paid, and this new assessment is without authority of law.

      “Second. That the resolution and report of the committees of the common council, recommending said work, were not published two days in all the newspapers employed by the corporation before said resolution was passed and adopted by the respective boards of the common council, nor was any or either of them, nor any notice thereof, ever published as required by section 7, of the amended charter of 1857.

      “ Thi/rd. That there was no authority of law for laying any assessment for said work.
    “ Therefore, your petitioners pray that said assessment, so far as it affects the said lots of your petitioners, be adjudged irregular and void, and be vacated and set aside, and the lien therefor cease and be canceled.”
    Proof was offered to show that the assessment was imposed on the lots in question.
    The counsel for petitioner read in evidence, from the printed proceedings of the board of aldermen, the following letter appointing corporation newspapers in the city of-Kew York:
    “ Mayor’s Office, ) “Kew York, July 2, 1863. j
    “ In pursuance of the second section of the act entitled £An act to enable the supervisors of the county of Kew York to raise money by tax for the use of the corporation of the city of New York,’ passed April 24, 1863 (chapter 227, Laws of 1863), we, George Opdyke, mayor, and Matthew T. Brennan, comptroller, hereby designate the New York Dispatch and New York Leader as two additional papers in which to publish advertisements mentioned in said act.
    “ (Signed) GEORGE OPDYKE,
    “ Mayor.

    “ (Signed) MATTHEW T. BRENNAN,
    “ Comptroller.

      “ Which was referred to committee on printing and advertising.” (Proceeding of the board of aldermen, volume XCI, page 338.)
    The counsel for petitioner produced in evidence the proceedings of the common council, whereby it appeared that the resolution authorizing this work, was introduced into the board of aldermen, March 11, 1867; the report of committee, made March 14, 1867, and adopted June 12, 1867. It was introduced into the board of councilmen and referred, April 1, 1867, and adopted June 24, 1867.
    It appeared, by affidavit, that no publication of the resolution authorizing this work, appeared on the files of the New York Leader from March 11, 1867 to June 24,1867.
    The petitioner also showed that the said lots were assessed for such flagging in an assessment list confirmed in 1850, and that the amount was paid; and he testified that on January 27, 1869, the date of confirmation of the assessment, he was the owner of the lots mentioned in the petition.

      William Barnes and E. Delafield Smith, for the appellants.
    The petitioner did not show that he was owner of the lots when this proceeding was commenced, and he cannot maintain it. (Townsend v. Goelet, 11 Abb. Pr., 187; Bissell v. Kellogg, 60 Barb., 617-629.) Section 7, chapter 456, of 1857, did not require the publication in the New York Leader. Any irregularity was cured by section 7 of act of 1872, as amended by chapter 332 of 1874.

      Neville & Andrews, for thepetitioner.
    The assessment was void for failure to publish. (Matter of Douglass, 46 N. Y., 42.) Section 175 of chapter 86, of 1813, gave power to assess for paving the streets. The sidewalks are part of the streets. (Wallace v. The Mayor, 2 Hilt., 440; Corporation Ordinances, 1866, p. 232; Davenport v. Ruckman, 16 Abb. 341; Angell on Highways, p. 304.)

       See In re Burke, post.

   Davis, P. J.:

The assessment which the petitioner seeks to vacate, was confirmed on the 27th day of January, 1869; and is upon certain lots known and distinguished on the assessment list by ward number 2348, map Ho. 3.” The petition was verified on the 4th day of February, 1874, showing that more than five years had elapsed, z/ between the confirmation, and the filing of the petition to set aside the assessment. Assessments of this character are not to be presumed invalid. They are made for the purpose of charging improvements of the public streets upon the property actually benefited thereby, and the burden ought not to be shifted from such property to the shoulders of the tax-payers of the city, for light or trivial reasons. The acts of making and confirming such assessments, are taken for the public benefit, by public officials, and are, therefore, upon principles which have become maxims of the law, to be presumed to have been rightly and properly performed till the contrary is plainly shown. The petitioner after so long a lapse of time, attacks the assessment by this summary proceeding, substantially on the ground that it is a cloud upon the title of the lots affected which he has the right to have removed by an adjudication of the court. The assessment is not a personal tax upon him. It is a lien upon the lands upon which it is charged, and the first duty of the petitioner is to show that he has such an interest in the lands as owner, as entitles him to institute a proceeding to free the title from the alleged cloud. This he has failed to do.

In Townsend v. Goelet it was held that a grantor of land, who has no longer any interest, cannot maintain an action to remove an apparent lien thereon as being a cloud on the title, on the ground that he agreed with the grantee, that he would procure the lien to be discharged. And in Bissell v. Kellogg this court, sitting for the fourth department, held that an action to remove a cloud upon the title to land in which the plaintiff has no interest, does not lie on the sole ground that he has warranted the title $ and Taloott, J., in delivering the opinion of the court, says: “We have been referred to no authority, and have discovered none, giving countenance to the idea that a party can maintain a suit to remove a cloud upon the title to land in which he has no interest, and upon the sole ground that he has warranted the title; and we do not think that such an action can be maintained.” We think there can be little doubt, that, to maintain his proceeding, the petitioner in such case ■ must show an actual interest in the land at the time of filing his petition. Otherwise, he is not the party aggrieved. He must show himself either to be the owner at the time, or to bear such a-relation to the land that he is directly aggrieved by the continuance of the lien, and it is not enough to show that the present owner, in some future contingency, will or may have recourse to him for indemnity upon the covenants of a grant or other contract. The petitioner in this case does not show, even argumentatively, that he has any present interest in the lots. He testifies, “ that at the time of the confirmation of the above named assessment, on the 27 th day of January, 1869, he was the owner of, and still is held liable for the payment of the assessments imposed on lots mentioned and described in said petition by ward number 2348.” This clearly is no assertion of any present interest in the land. On .the contrary, the fair inference from his testimony is that he is not the present owner; and his statement may be entirely true, and yet the land have passed through any number of subsequent grantees, to the person who is now its o.wner. It is true he states that, he is still held liable for the payment of the assessment, but how, and to whom, and under what circumstances, he does not disclose. The statement is at most a mere legal conclusion of his own mind from undisclosed facts and circumstances, and by no means affords to the court any basis for the finding that his -relation is such that he is the proper party to institute this proceeding. Possibly the really interested parties have no complaint to make, but are quite willing to bear a share of the expense of an improvement, beneficial to their land, notwithstanding some error which would in strictness enable them to cast it wholly upon their fellow taxpayers. We think this defect in the proof is fatal, and calls for a reversal of the order.

Bat the proof was entirely insufficient, for other reasons, to justify the vacation of the assessment. The principal point alleged, is that the proceedings of the common council, in relation to such assessment, were not published in “The New York Leader.” Proof was given that they were not found on full search of the files of that paper, between the 11th day of March, 1867, and the 24th day of June, 1867; and a certificate was produced, signed by the mayor and comptroller July 2, 1863, designating the New York Leader and another paper, as two “additional papers, in which to publish the advertisements, mentioned in said act.” (The act of April 24,1863.) The proof stopped here; but something more was requisite. It was not sufficient to show that a paper had been designated in 1863, because a designation was not an employment of the paper. No obligation was thereby imposed on the paper, and, unless it appeared that the paper accepted the appointment and performed the duty, required by it as one of the advertising papers, nothing would follow from the mere designation. To illustrate: The New York Herald was one of the daily papers designated by those officers; but it is said that the Herald refused to publish the proceedings and notices on the terms offered. Of course the most diligent search would fail to find any of the ordinances or proceedings in relation to assessments, in the columns of that paper, and hence, if mere proof of designation, followed by proof that the publications were not to be found in one of the papers designated, was sufficient to overthrow an assessment, then every assessment, for several years, would be defeated for lack of publication in the Herald. In addition to designation, it was essential to prove that the paper in fact became an advertising organ of the city, employed, and, by acceptance of the terms of the designation, accustomed and bound to insert the advertisements. The mere absence of the publication in the Leader in 1867, was therefore quite insufficient to overthrow the presumption that the publications were properly made in the papers really in the employ of the city at that time.

Besides, by the act of 1866, $30,000 were appropriated for advertising for the common council; and it was provided, that “no portion of the sums which shall hereafter be raised by tax and assessment, or from any other source, in the city and county of New York, shall be paid for advertising, except the same shall have been incurred for advertisements in the newspapers, authorized by the mayor, comptroller a/nd corporation counsel of said city, or any two of them.”

Here, a new board of appointment was created, which may be. presumed to have done its duty, and non constat that the Leader was one of the papers authorized by that board.

Again, by the act of April 23, 1867, the comptroller alone is directed “ to select three daily, and three weekly newspapers published in the city of New York, as papers wherein the proceedings of the common council or either branch thereof shall be published. * * * And no proceedings of the common council or of either branch thereof, or notices of its committees, shall be officially published in any other paper or papers.” We are not to presume that the comptroller did not perform this duty; and, in the absence of proof, it cannot be presumed that the designation of the Leader, in 1863, continued operative in 1867, notwithstanding the intervening acts and directions of the legislature. It is not necessary to discuss the other questions that arise; nor to show that the curative act of 1872, made valid the assessment in question, because, upon the grounds already stated, the order of the Special Term vacating the assessment, must be reversed with costs, and the petition and proceedings dismissed with costs.

Daniels and Brady, JJ., concurred.

Order reversed, and petition and proceedings dismissed.

       11 Abb. Pr. Rep., 187.

      60 Barb., 617.

       Sess. Laws of 1866, chap. 876, vol. 2, p. 2056.

       Chap. 585 Laws of 1867, page 1597, vol. 2.

       See Lennon case, 55 N. Y., 361.


author: Lawrence, J.:

text:
    HILL GOWDY, Appellant, v. ANTONIE POULLAIN, Respondent.

      Amendment of pleadings — order denying motion for — reniewdble on appeal to General Term — Laches.

    An order denying a motion to amend plaintiff’s complaint, may foe reviewed on appeal to the General Term.
    Such a motion is properly denied on the ground of plaintiff’s laches in making the motion.

      Appeal from an order denying plaintiff’s motion for leave to amend his complaint.
    The complaint alleged that defendant was a commission merchant doing business in Augusta, Ga. That January 20, 1865, as agent for the plaintiff, he had in his possession 441 packages of tobacco, of the value of $18,964. That he sold said tobacco for that sum, and had neglected to account for the proceeds of such sale. The answer alleged that the parties had had other transactions together, ■ and that the one in question, at the same time with such other transactions, had been settled and adjusted, and the balance found due paid over. The plaintiff obtained an order to show cause, why his complaint should not be amended, returnable on the 9th March, 1874; in such amended complaint proposing to set up that the defendant had received 21,175 pounds of tobacco, of the value of $21,175, and had sold the same without the consent, authority or knowledge of the plaintiff, and asking for judgment for that amount. The motion papers showed that issue was joined October 3, 1871. That defendant had been examined before trial, September 2,1873. That on January 29,1874, the cause was reached in its order on the calendar, and set down for trial for February seventeenth, and remained on the day calendar till March third, when the plaintiff moved that the case go over the term, on account of the plaintiff’s sickness. The cause was set down for trial for the twenty-fourth of March. Flo amendment to the complaint was suggested till March 5, 1874. The court refused to allow the plaintiff to amend his complaint.

      Edward Fitch, for the appellant.
    The court could grant the motion under section 173 of Code. (Ford v. Ford, 53 Barb., 525.) Also before the Code. (Williams v. Cooper, 1 Hill, 637; Beardsley v. Stover, 7 How., 294; Harrington v. Slade, 23 Barb., 161; Union Nat. Bank v. Bassett, 3 Abb. Pr. [N. S.], 359 ; Knapp, Recr., v. Roach, Law Register, July 8, 1874.)

      John E. Ward, for the respondent.
    The court cannot, under Code, section 173, allow an amendment substantially changing claim. (5 Robt., 622; Ford v. Ford, 53 Barb., 526, 527; Whitcomb v. Hungerford, 42 id., 177, 185; Van Syckels v. Perry, 3 Robt., 621; Brown v. Leigh, 49 N. Y., 78; 4 Wait’s Pr., 658; Moore v. McKibbin, 33 Barb., 246, 249 ; Walter v. Bennett, 16 N. Y., 250.) Having adopted the sale, the plaintiff is estopped from setting up want of authority to sell. (Morris v. Rexford, 18 N. Y., 552, 557; Rodermund v. Clark, 46 id., 354, 357; 1 Tidd’s Pr., 10.) Discretion ordinarily will not be reviewed. (Smith v. Bodine, 1 Hun, 309.) Amendments to verified pleadings should be allowed with caution. (Strong v. Dwight, 11 Abb. [N. S.], 319-325; Verplank v. Mer. Ins. Co., 1 Edw. Ch. 46; Jennings v. College, 8 Ves., 79 ; Dolder v. Bk. of England, 10 id., 285; 19 Barb., 51; Sheldon v. Adams, 41 id., 54.)
   Lawrence, J.:

It is insisted by the respondent’s counsel that, as the order asked for was one which rested in the discretion of the justice who heard the motion at the Special Term, it is not the subject of review by the General Term. We are of opinion that, under the recent decisions of the Court of Appeals, in Gray v. Fisk, and in Livermore v. Bainbridge, the order can be properly reviewed by the General Term. An examination of the motion papers, and of the affidavits read in opposition, has, however, failed to convince us that the justice at Special Term, erred in the conclusion reached by him. The transaction, out of which the alleged cause of action arose, took place in 1865. When the action was commenced, the plaintiff must have known whether the defendant sold the tobacco, referred to in the complaint, by his, the plaintiff’s, authority, and as his agent, or whether he wrongfully sold it, and converted the proceeds to his own use. To allow the plaintiff, now, after the cause has been reached, and has been on the day calendar many days, to entirely change his cause of action by amending his complaint, would not, in our opinion, be in furtherance of justice. On the ground of laches alone, if no other existed, we think the motion was properly denied.

The order appealed from should be affirmed, with costs.

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

Order affirmed, with costs.

      53 N. Y., 630.

       47 How., 354.

         Code, sec. 173.


text:
    In the Matter of the Petition of EUGENE KETTELTAS to vacate an Assessment for Curb, Gutter and Flagging.

      Neglect of duty by public officer not presumed—Designation of newspaper — not necessarily an employment of it—its acceptance necessary—§ 7, chapter 580,1872.
    The court will not presume that a public officer has neglected his duty.
    The mere proof that a newspaper is designated to publish the official proceedings, without proof of its acceptance of the appointment, is not sufficient to show that it is an advertising organ of a city.
    The failure to publish proceedings relative to assessments in the city of New York, does not justify the vacating of the assessment, since the passage of section 7, chapter 680, of 1872. (Davis and Brady, JJ.)
    Appeal taken by the Mayor, etc., of New York, from an order vacating an assessment.
    The petitioner filed in the Supreme Court the following petition: “ The petition of Eugene Ketteltas respectfully shows to this court: “ That at the times hereinafter mentioned your petitioners were, and still are, the owners respectively of the lots hereinafter described. That on the 24th day of February, 1869, an assessment list was confirmed, whereby an assessment for curb, gutter and flagging East street, between Grand and Broomé streets, in the city of New York, was imposed upon certain lots known and distinguished on said assessment list.by the ward numbers 1162,1163,834, 835, 944.

      “ That said assessment is irregular and void for the following reasons:

      “First. That previously to the laying of the aforesaid pavement, or curb, gutter and flagging, the said street has been paved or curbed, guttered and flagged, and an assessment therefor levied upon said lots, and paid, and this new assessment is without authority of law.
    “ Second. That the resolution and report of the committees of the common council recommending said work, were not published two days in all the newspapers employed by the corporation before said resolution was passed and adopted by the respective boards of the common council, nor was any or either of them, nor any notice thereof ever published as required by section Y, of the amended charter of 185Y.
    “ Third. That there was no authority of law for laying any assessment for said work.

      “ Therefore, your petitioners pray that said assessment, so far as it affects the said lots of your petitioners, be adjudged irregular and void, and be vacated and set aside, and the lien therefor cease and be canceled.”
    The petitioner made affidavit that, at the time of the confirmation of the assessment, the petitioner was che owner of, and still is liable to pay the assessment, imposed on the lots in the petition described. The assessment was confirmed February 24, 1869, and was duly entered in the department of public works, and in the office of the clerk of arrears.
    The petitioner put in evidence the following:
    “Department of Finance, )
    “ Comptroller’s Office, July 6th, 1867.)
    “ To the Honorable the Common Cov/ncil:

    “ Gentlemen.— I have honor to inform you that, in pursuance of the provisions contained in the first section of the act, chapter 586, Laws of 1867, I have selected and designated the following named daily and weekly newspapers, ‘ wherein the proceedings of the common council, or either branch thereof, and the notices of its committees, shall be published ’ during the year 1867, viz.:
    “ Daily.

    u Date of appointment. Name of paper.
    “ July 1, 1867................. The N. Y. Daily Transcript,
    3, 1867................. The Evening Express.
    3, 1867............ The Daily News.
    “ Weekly.

    “July 1, 1867................. The New York Leader.
    1, 1867................. The New York Citizen.
    1,1867................. The New York Atlas.
    “ Annexed is a copy of the instructions sent to each of the papers designated.
    “ Respectfully submitted,
    “ (Signed.) ' RICHARD B. CONNOLLY,
    “ Comptroller.”
    The counsel for the petitioner produced in evidence the proceedings of the common council, whereby it appears that the resolution authorizing this work, was introduced into the board of aldennen, April 4,1868, and adopted by it May 7,1868; and that it was introduced into the board of councilmen, May 11, 1868, and adopted May 14, 1868.
    He also proved, by affidavit, an examination of the files of the New York Leader, between April 4,1868, and May 14, 1868; and that no ordinance of the common council, relating to this work, was found there. The counsel for the petitioner also showed that the lots in question were assessed for such work, and the amount paid.

      E. Delafield Smith, for the appellants.

      Neville & Andrews, for the respondent.

      For cases cited by counsel, see Phillips v. Mayor, etc., page 214.

   Davis, P. J.:

In this case, also, the petitioner has failed to establish any interest in the lots which entitles him to maintain the proceedings. The reasons assigned in the opinion in In re Phillips, are equally applicable to the present case. There was also an utter failure to prove the alleged defect. It was shown tnat the New York Leader was designated by the comptroller as one of the papers to publish the proceedings of the common council, pursuant to the first section of chapter 586, of the Laws of 1867, but the designation was limited by its terms to the year 1867. All the proceedings in this matter took place in 1868. The absence of notices, etc., in the New York Leader in 1868, may quite as readily be accounted for, perhaps, by presuming the non-designation of that paper for the year 1868, or by the termination of its employment (which, under the designation proved, could only regularly have been for the year 1867), as by the presumption that the officers of the city were guilty of a neglect of official duty. It is quite certain that no proof was given that the Leader was appointed for 1868, unless it is to be found or inferred from a certificate which in terms designated that paper “ during the year 1867.” And to treat the proof given, as evidence of a fatal defect, it is necessary to presume a double neglect of duty on the part of public officers; first, that the comptroller neglected to make any designation for the year 1868 ; secondly, that the common council neglected to publish its proceedings in all the papers employed by the city. Again, if the designation of the Leader for 1868, can be inferred, that alone was not sufficient proof that that paper in fact became one of those employed by the city. The proof given was only one step toward proving such employment, and, as the paper was not bound by the mere act of designation, there was a fatal insufficiency in the proof given. I am of opinion, also, that had the alleged defect in the publication been proved, the seventh section of the act of 1872 operates to prevent the vacating of the assessment on any such ground, and that this case is not within the exception contained in that section.

The order appealed from should therefore be reversed, with ten dollars costs and disbursements, and the petition denied, with ten dollars costs of the court below.

Brady, J., concurred; Daniels, J., concurred, but without deciding what effect the act of 1872 should have in the case.

Order reversed and petition denied.

       Sess. Laws 1872, chap. 580.

       Lennon case, 55 N. Y., 361; Matter of Antwerp, same court; In re Mayer, 50 N. Y., 504.


text:
    THE PEOPLE ex rel. EUGENE KETTELTAS, Appellants, v. ARTEMUS S. CADY, Clerk of Arrears, Respondent.

      Mandamus — application for too broad — effect. •

    When an applicant for a mandamus asks for more than he is entitled to, the-application is properly denied, though the applicant may he right in other respects.
    Appeal from an order denying a motion that a mandamus issue-against the defendant (clerk of arrears in the city of Hew York), requiring him to render bills of arrears of assessments, with interest calculated at the rate of twelve per cent per annum from the date of the act making them valid, instead of from the time when, the assessments came due.

      Neville & Andrews, for the relator.

      E. Delafield Smith, for the corporation.
   Brady, J.:

The appellant, assuming that the assessments referred to were void, bat legalized by act of the legislature, and that he was therefore not liable for interest upon the amount of his assessments, <- prior to the day on which the act was passed, demanded from the respondent, who is the clerk of arrears, a bill of each of his assess-' ments, with interest calculated from that day. The assessments were imposed, respectively, on the 27th April, 1871, and 1st September, 1869. The act mentioned was passed May 7th, 1872. The respondent having refused to comply with his request, he applied for a mandamus to compel the former, not only to make out the bills in the manner required by his request, but to receive the amount of the bills, give receipts therefor, and to mark in his record of arrears that the assessments had been paid. He thus sought to relieve himself of the interest which might be charged from the time when each assessment, if legal, was confirmed. He made no tender of any amount. He received no bills stating the sum to be paid, and, without waiting until a bill was rendered,, gave instructions as to the manner in which it should be made up for each assessment, and at the same time required the respondent to receive the amount thus ascertained, and thereupon to cancel the assessments on the records in his office. A statement of this proceeding is quite sufficient to show the propriety of the order made ! at Special Term denying his motion. The demand made, required the clerk of arrears to adjudicate upon the question of interest, and ; in accordance with the appellant’s interpretation of the statute of 1872, and then to perform a duty, on receiving the payment, which is not imposed upon him by any statute or ordinance to which our attention has been called. If the appellant were right in other respects, he must fail, because he asked more than he was entitled to. The statute of 1853 requires the clerk of arrears to furnish bills of arrears, and declares that his receipt thereon shall be conclusive evidence of such payment, countersigned by the comptroller, whose duty it is to cause to be kept a duplicate account of the amounts collected. It is not enjoined upon him to cancel the assessment, although such a practice doubtless exists for the convenience of the department, and for the benefit of the public. The receipt, countersigned as suggested, is made conclusive evidence for the payer, and this is all he can demand of the respondent. It is not necessary to consider here the effect of the statute of 1872, the appellant’s proceedings being radically defective. It is proper, however, to suggest that the statute named confirms the assessments, generally, and not from any date. The order made at Special Term should be affirmed, with ten dollars costs.

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

Order affirmed.

       People v. Green, 64 Barb. Rep., 162.

       Laws 1853, p. 1065.


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

text:
    THE PEOPLE, etc., ex rel. BENJAMIN K. PHELPS, District Attorney of New York County, Appellants, v. ENOCH L. FANCHER, Respondent.
    Contempt— Refusal of witness to answer question —power of court to commit for — Habeas corpus — what may be inquired into upon its return — where should, be made returnable.

    Where a witness, duly summoned to testify before the grand jui’y, appears and refuses to answer a proper question propounded to him in the course of Ms examination, the court has power to commit him to the county jail until he shall answer such question, and such commitment is regular and lawful, both at common law and under the statutes of this State.
    Where a person so refusing to answer has been committed, and a habeas corpus has been granted, the officer allowing the writ has no power to inquire into the truth of the facts stated in the commitment, nor whether the question was a proper one, or whether the prisoner was privileged from answering it. The justice or propriety of the commitment cannot be reviewed in this way. (Per Westbrook, J.)
    Where a witness has been committed by the Court of Oyer and Terminer of Kings county, for refusing to answer a question put to Mm by the grand jury, and the court still remains in session, a justice of the Supreme Court in the city of New York, has no power to allow on his behalf a writ of habeas corpus
      made returnable before himself, and no power to discharge the arrest. (Per Davis, P. J., and Westbrook, J.)
    Certiorari to review proceedings on habeas corpus, by which one W. F. Gr. Shanks was discharged from the custody of the sheriff of Kings county. The opinion of Mr. Justice Fancher is reported in 15 Abbott (N. S.), page 38. The facts are stated in the opinion.

      Winchester Britton, for the relator.

      Henry L. Clinton & C. A. Runkle, for Shanks.
   Westbrook, J.:

At a court of Oyer and Terminer, regularly convened, held in and for the county of Kings, in October, 1873, W. F. Gr. Shanks was subpenaed and examined as a witness before the grand jury of such court. The complaint, in furtherance of which he was summoned as a witness, was for an alleged libel upon Alexander McCue, published in the New York Tribune of August 30, 1873, and contained in an article printed in that paper, entitled the Brooklyn Ring’s Method.” For the purpose of ascertaining the name of the writer of the alleged libellous article, with a view to his indictment, Mr. Shanks was asked the following questions, and gave the following answers: Q. Do you know who wrote the article, entitled the Brooklyn Ring’s Method,’ in the issue of August 30th, 1873 ? A. I do know. Q. Who was it ? A. I decline to am,swer the question, because I am i/nstructed, as one of the editors of the paper, not to give the name of writers of articles published in it. It is one of the office regulations, and on the principle that the paper, a/nd not the editor, is responsible.” The grand jury reported the refusal of Mr. Shanks to answer, to the said Court of Oyer and Terminer, which, after adjudging the question to be proper, committed him to the common jail of the county, upon his persisting in his refusal to answer, “ until he may answer the questions propounded to him which he has refused to answer.” The commitment bears date the 22d day of October, 1873, and was subscribed by the judges holding the court. The sheriff of the county of Kings, having received Shanks into his custody under the commitment, was required, by a writ of habeas corpus ad testificancbmi, issued by the Court of Oyer and Terminer, held in and for the city and county of Hew York, Judge Hoah Davis presiding, to produce him before said court, on the 23d day of October, 1873, at ten o’clock a. m., to be examined as a witness upon a trial of an indictment, then pending in said court against Edward S. Stokes. In obedience to the requirements of such writ, Mr. Shanks was brought before the court issuing the same and examined as a witness, and, after his evidence had been given upon the trial, he was remanded by the Hew York Oyer and Terminer to the custody of the keeper of the jail within named, under the commitment of the Court of Oyer and Terminer of the said county of Kings.” After Mr. Shanks had been thus remanded into the care and custody of the sheriff of the county of Kings, and before his return to the jail of that county, a writ of habeas corpus, to inquire into the cause of his detention, was issued by the Hon. Enoch L: Fanoher, then one of the justices of the Supreme Court, requiring such sheriff to produce him before the said judge, at the chambers of the Supreme Court, in the court-house in the city of Hew York, on the 23d day of October, 1873, at two o’clock in the afternoon.

Upon the return day and hour of the writ, Mr. Shanks was brought before Judge Fanoher by the sheriff of Kings county, who, by his return, claimed to hold him in custody by virtue of the commitment of the Kings County Court of Oyer and Terminer, before mentioned, and the order of the Hew York Oyer and Terminer which had remanded him to the charge of such sheriff under the said commitment for his contempt in refusing to answer the question propounded by the grand jury. After a somewhat protracted hearing before the learned judge, in which all parties were ably represented by counsel, Mr. Shanks was discharged, for the reason that the Oyer and Terminer of Kings county had no power to commit him to prison until he should answer the question propounded by the grand jury and approved by the court, but that such imprisonment could not exceed the period of thirty days, and the term thereof, within such limit, should have been specified in the commitment. From the order and decision of Judge Fanoher, discharging Mr. Shanks from the custody of the sheriff of the county of Kings, a writ of certiorari, removing the proceedings into this court, is a virtual appeal; and by it, an important practical question in the administration of justice is presented, affecting not only investigations for alleged libels, but any and every crime whatsoever. Before referring to the statutes of our State, let us look at it as a question of common law.

The Court of Oyer and Terminer of the county of Kings, had full and complete jurisdiction over all crimes and misdemeanors committed within its territorial jurisdiction. The grand jury was a necessary part of the machinery of the court, to inquire into all crimes committed within the body of the county, and to present all offenders for trial. In the prosecution of their inquiries, in regard to which they had been specially charged, they were entitled to the attendance of witnesses before them, and to the evidence of such witnesses when duly sworn. This is not only plain as an original question, but has been expressly held. If a witness declines to answer a question, adjudged by the court to be legal and proper, the court has full power, without any statute, to compel an answer. It was well said by Fletcheb, Justice, in Heard v. Pierce, just referred to, The general rule is well established, that when a general power is given or duty enjoined, every particular power, necessary for the exercise of the one, or the performance of the other, is given by implication.” Without the right to commit the witness who refuses to answer, how could c‘ the power given,” and duty enjoined,” of inquiring into all offenses against the law, be discharged ? Courts of justice, if powerless to enforce lawful orders, would be only a show, and the attempt to bring offenders to justice, only a farce. But we need not reason to prove that this power of commitment is inherent in the court. It was so expressly held in People v. Hackley, before cited. In the course of his opinion, Judge Denio, speaking of the refusal of a witness to answer a proper question propounded by a grand jury, and the right of the court to commit the witness for such refusal, said: If the case is not reached by the statute, the power would be ample at the common law.” Assuming, then, the power of the court to commit a witness for refusing to answer a proper question, the propriety of the duration of the imprisonment, as specified in the commitment of Mr. Shanks, is most obvious. It was neither unreasonable or improper, but was exactly adapted to the case. It terminated whenever Mr. Shanks obeyed a lawful and legal order, and continued just as long as he placed the power of the court and the law at defiance. Many a question in the investigation of crime, and necessary to be answered to bring a criminal to justice, would remain unanswered, if the witness knew that the lapse of thirty days would free him from the power of the court, and enable him to set at defiance the law, whilst the same person would freely answer, if he knew that his imprisonment would continue so long as he continued contumacious.

In the case before us, the learned judge who granted the discharge, does not intimate that the question which Mr. Shanks refused to answer, was not a legal and proper one to be propounded. As the law now is, and has for ages existed, no court could possibly hold that a witness could legally refuse to give the name of the author of an alleged libel, for the reason that the rules of a public journal forbade it. That some other party assumes the responsibility of a crime, and is willing to suffer its consequences, can never prevent an inquiry as to each and every person concerned therein, and the holding of all such equally responsible with the one avowing it. The admission of such a principle, if carried to its logical conclusion, would shield him who hires an assassin to strike a fatal blow, so long as the slayer avowed himself to be solely responsible for the act. This extreme case is put for the purpose of showing the impolicy of the reason, and its worthlessness in a court of justice. He who writes a libellous article for publication in a newspaper, is certainly guilty of a crime, and that guilt cannot be taken away by the readiness of another to meet its consequences. There is no exchange or substitution of punishment in the administration of justice. If, for reasons of public policy, it shall be deemed wise to hold only the editor or publisher of a paper liable for its contents, then the legislature alone can so declare by express enactment, for the contrary doctrine has become too firmly and fixedly imbedded in the common law by the lapse of ages, to be ever altered or disturbed by the courts.

Independent, then, of any statute authorizing the Court of Oyer and Terminer to commit a witness for refusing to answer a proper question until answered, that court has ample power at common law to order such a commitment. Such a proceeding is not one to punish a party as for a contempt, but the exercise of a power necessarily conferred, to elicit truth, and to administer justice. It was not necessary to bring Mr. Shanks before the court and formally adjudge him to be guilty of a contempt; but, upon his refusal to answer the question which the court adjudged to be proper, it might, by simple rule, have ordered him to be confined until he should answer. After this step had been taken, the court had ample power to punish for the contempt of its lawful authority. The two proceedings are separate and distinct, and the exercise of the one in nowise conflicts with the exercise of the other. But the commitment of Mr. Shanks was precisely as the statute directs.

The Revised Statutes declare: “ The proceedings prescribed by law in civil cases, in respect to the impanneling of juries, the keeping them together, and the manner of rendering their verdict, shall be had upon trials of indictments; and the provisions of law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempts to enforce the remedies and protect the rights of parties, shall extend to trials and other proceedings on indictments, so far as they may be in their nature applicable thereto, subject to the provisions contained in any statute.” It will be observed that “proceedings as for contempts to enforce the remedies and protect the rights of parties,” are, by the section of the statute just quoted, made applicable “ to trials and other proceedings on indictments.” In People v. Hackley, before quoted, it was decided that the words, other proceedings,” make the section applicable to the case of a witness who refuses to answer proper questions, propounded by a grand jury. Judge Dbnio, in delivering the opinion of the court, says: “ The criticism of the appellant’s counsel is, that the examination of a witness before a grand jury is not a proceeding upon an indictment, and so not within the statute. In one sense it is not. But by the theory of proceedings in criminal eases, the indictment is supposed to be prepared and taken before the grand jury by the counsel prosecuting for the State; and the evidence is then given in respect to the offense charged in it. If the party accused appears to be guilty, the indictment is certified to be a true bill; otherwise, it is thrown out. In that view of the practice, all which takes place before the grand jury, as well as the subsequent steps, may be said to be proceedings upon the indictment.”

It will further be noticed, that the provisions of our Revised Statutes, relating to “ proceedings as for contempts to enforce the remedies and protect the rights of parties,” are alone made applicable to trials and other proceedings upon indictments, and not those which are contained in part 3, chapter 3, title 2 and article 1, of the Revised Statutes. The learned counsel for Mr. Shanks is certainly correct in saying that Judge Potter, In the Matter of Watson, has very “ clearly pointed out ” the distinction between the two classes of contempts, but, unfortunately, in his argument, ■he. contends that the latter sections referred to, are those which control the.dealings with an obstinate witness, and not the former, which, by the express words of the statute, quoted above, are made applicable to proceedings of that character. Row what are those proceedings ?

That portion of our Revised Statutes which is entitled, “Of proceedings, as for contempts, to enforce civil remedies and to protect the rights of parties in civil actions,” gives to every court of record “ power to punish by fine and imprisonment” for various causes, and, among others, “All persons summoned as witnesses for refusing and neglecting to obey such summons or to attend or be sworn or answer as such witness.” The mode of procedure is also pointed out, and then it is enacted: When the misconduct complained of, consists in the omission to perform some act or duty, which it is yet in the power of the defendant to perform, he shall be imprisoned only, until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings.” If this provision does not reach the case before us, then, it seems to us, language fails to express thought. The Court of Appeals have held, in conformity with the plain words of the statute, that the provisions of our Revised Statutes, entitled, “ Of proceedings, as for contempts, to enforce civil remedies and to protect the rights of parties in civil actions,” are applicable to the case of a witness who refuses to answer proper questions to a grand jury. These portions of the Revised Statutes give to every court of record the power to punish by fine and imprisonment, or either, “all persons summoned as witnesses, for refusing or neglecting to obey such summons, or to attend, or be sworn, or answer, as such witness.”

And they further provide, that when “ the misconduct complained of, consists in the omission to perform some act or duty, which is yet in the power of the defendant to perform, he shall be imprisoned only until he shall home performed such act or dui/y, and paid such fine as shall be imposed, and the costs and expenses of the proceedings.” The language is plain and imperative. It was evidently the “ duty ” of Mr. Shanks to answer the question asked ; “ the misconduct complained of,” clearly consisted “in the omission to.perform some act or duty,” which it was yet in his power to perform; and, all these events occurring, the commitment was required to be “ until he shall have performed such act or duty.” It was in the power of the court, also, to have imposed a fine, in addition to the imprisonment; it could do either or both, but the argument which seeks to prove that this section is not applicable, because no fine or costs were imposed in addition to the imprisonment, is certainly unsound and fallacious. The error which the learned judge committed in discharging Mr. Shanks, arose from applying certain other provisions of our laws, in regard to contempts, to this case, and in overlooking the fact that our statute governs “ trials and other proceedings upon indictments by these provisions which relate to proceedings as for contempts to enforce the remedies and protect the rights of parties.” In these statutes, there is no limitation of thirty days upon the power of imprisonment, and there obviously ought not to be. With such a restriction, a court would be powerless to enforce its orders, and insure obedience to its mandates.

Having reached the conclusion that the commitment of Mr. Shanks until he should answer the question asked by the grand jury, was legal and proper, it is perhaps unnecessary to go any further. But there is another provision of our Eevised Statutes, so exactly applicable to this case, that attention is directed to it. In their direction as to proceedings upon writs of habeas corpus, are contained the following, which prescribe the duty of the court or officer before whom a party is brought on such writ: “ It shall be the duty of such court or officer, forthwith to remand such party, if it shall appear that he is detained in custody, either * * * for any contempt specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged.”

It is difficult to see how this plain provision could have been overlooked. In the commitment of Hr. Shanks, a contempt was specially and plainly charged, and certainly the Court of Oyer and Terminer had authority to commit for the contempt so charged. The provision is imperative and clear, and its binding force has been repeatedly recognized, A reference to these cases will show how imperative was the duty which the statute enjoins. The judge before whom Hr. Shanks was brought by the writ, as the cases referred to expressly hold, had no power to inquire into the truth of the facts stated in the commitment, nor whether the question was a proper one, or whether the prisoner was privileged from answering it. “ The legislature ” (as Judge Bronson further says in 5 Hill, 168) did not intend to provide for a retrial by habeas corpus in such a case. The review is by certiorari or writ of error.” And this opinion of Judge Bbonson is precisely in conformity with the statutes of our State, which declare: “ But no court or officer on the return of any habeas corpus or certiorari, issued, under this article shall have power to inquire into the legality or justice of any process, judgment, decree or execution specified in the preceding twenty-second section; nor into thejus tice or propriety of any commitment for a contempt made by any court, officer or body, according to law, and charged in such commitment as hereinbefore provided.”

These provisions of the statute seem to us to be very plain. In the first place, the officer allowing the writ is commanded forthwith to remand such party, if it shall appear that he is detained in custody * * * for any contempt specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged; ” and in the next, such officer is declared to be without power “ to inquire * * * into the justice or propriety of any commitment for a contempt, made by any court, officer or body, according to law, and charged in such commitment.” That commitment, which, in the expressed duration of its term, is in excess of the power conferred, is neither just nor proper; and a review of that question necessarily involves its “justice ” and “propriety.” We do not see how this conclusion can be avoided, for, if it be held that any officer who may issue a habeas corpus, may discharge a person who is committed for a contempt, because such party is committed for a longer period than the law authorizes, then such officer must necessarily pass judgment upon the “ justice ” and propriety ” of such commitment; and precisely this the statute has forbidden. Having conferred upon courts and officers the general power to commit for a contempt, the legislature evidently intended that, when in such a legal and proper case (and this is what the term “ according to law,” in the section quoted, means) that power had been exercised, it should not be the subject of a review, summarily, by either habeas corpus or certiorari, issued under the statute entitled, “ Of the writs of habeas corpus and certiorari when issued to inquire into the cause of detention.” Ho other construction will satisfy the plain words of our written law; and, certainly, judicial comity and a proper respect for the opinion of a court organized according to law — one member of which was the peer and judicial equal of the judge who discharged Mr. Shanks — should have prevented the summary disregard of its commitment, and left the party to his remedy by reviewing it in the manner in which J udge Bronson has pointed out. We say this with all respect to the learned judge who granted the discharge. Doubtless, owing to the pressure of many engagements, he was prevented from fully considering all the important questions which this case involves; and, had it been presented for review at a General Term, when the argument was more full, and more time given for deliberation, his conclusion might have been different.

Enough has been said to justify a reversal of the order dis charging Mr. Shanks from custody; but, for the purpose of governing future proceedings in cases of this character, we allude to another plain provision of our statutes, which, in this matter, was disregarded.

Mr. Shanks was in the custody of the sheriff of the county of Kings for a crime. In Spalding v. The People, the Court of Errors held, that a contempt of court was “ a criminal offense under the Revised Statutes, and was so before at the common law; subjecting the offender to indictment, and on conviction to fine and imprisonment.” When the writ of habeas corpus was issued to inquire into the cause of his detention, the Court of Oyer and Terminer of the county of Kings was in session, and that being the case, Judge Faxcher had no power to make the writ returnable before himself, and no power to discharge the arrest. The order of discharge was absolutely coram non judice, and void. The statute reads: “After the Court of Oyer and Terminer shall commence its sittings in any county, no prisoner detained in the common jail of any such county, upon any criminal charge, shall be removed therefrom by any writ of habeas corpus, unless such writ shall have been issued by such Court of Oyer and Terminer, or-shall be made returnable before it.” The writ, in the form it was issued, was powerless to remove the prisoner. • It was expressly forbidden by statute, and the sheriff would have been fully justified in refusing to produce the body of Mr. Shanks, and in making a return that he declined to obey it, for the reason that the written law forbade it. That portion of our statute which contains the section we have quoted, is entitled, Of the inspection of county prisons and the discharge and delivery of prisoners confined therein,” and it is obvious from its title as well as its provisions, that the sheriff should not have brought Mr. Shanks before the judge who issued the writ. The effect of his obedience was to remove the prisoner from the common jail of the county, contrary to the express command of the statute.

However doubtful our view may be of the duty of the sheriff when this writ was served upon him, it cannot, we submit, be even .plausibly argued that Judge Fancheb had power to order the discharge. The writ was returnable before himself, when the law required it to be returnable before the Court of Oyer and Terminer of Kings county. The learned judge ordered him to be removed from the common jail, when the statute plainly declared he could not be so removed. Ho sophism can close our eyes to the plain words we have quoted, and no argument add to their simple forbidding and direction. The result of our examination is, that the discharge of Mr. Shanks by Mr. Justice Fancheb was illegal and unauthorized, and that he must be remanded to the custody of the sheriff of Kings county, to be held by such sheriff under the commitment of the Court of Oyer and Terminer of that county, and subject to the control of that tribunal.

Daniels, J:

I concur in holding that the witness was legally committed until he answered the questions, and that the discharge on habeas corpus was improper.

Davis, P. J.:

I concur on the following grounds:

1st. The witness was lawfully committed for refusing to answer-a proper question; and the commitment until he should answer was regular and lawful, in form and substance, both under the statute and at common law.

2d. The writ should have been returnable before the Oyer and Terminer of Kings county. And when it appeared to the judge that that court was in session, the writ should have been dismissed as improvidently granted, or the hearing thereon should have been sent before that Oyer and Terminer. This was required both by the statute and by the comity due to a tribunal of concurrent jurisdiction in such proceedings.

       Heard v. Pierce, 8 Cush., 338; People v. Hackley, 24 N. Y., 74.

       See page 845.

         Page 78.

      Vol. 2, Edmond’s ed., p. 759, § 14; 3d vol., 5th ed., pp. 1027,1028, § 16.

      24 N. Y., 74.

         Page 79.

      3 R. S., 5th edition, p. 486 ; 2d vol., Edmonds’ edition, p. 286.

      5 Lansing, 466.

         2d vol., Edmonds’ edition, p. 552 ; 3 R. S., 5th edition, p. 849.

       2d vol., Edmonds’ edition, p. 557, sec. 23; 3d vol., 5th edition, p. 853, sec. 23.

       24 N. Y., 74.

       3 R. S., 5th. edition, p. 887, sec. 55; 2 Edmond’s edition, p. 588, sec. 40.

       People v. Mitchell, 29 Barbour, 622; People v. Nevins, 1 Hill, 154; see pages 170, 171; People v. Cassels, 5 Hill, 164; see pages 167,168; People v. Spalding, 10 Paige, 284; see pages 286, 287; 7 Hill, 301; see conclusion of opinion of Nelson, Ch. J., on page 304.

         2 Edmonds, page 589, section 42; vol. 3 of 5th edition R. S., page 888, section 57.

       7 Hill, 301.

       2 Edmonds, p. 784, sec. 27; vol. 3 of 5th ed., p. 1066, sec. 27.