text:
    Mary Ann Graham v. Owen Dunnigan.
    Although a defendant whose answer is demurred to, may, as a general rule, assail the complaint as not containing facts sufficient to constitute a cause of action, it is doubtful, whether the rule applies where the demurrer is merely to a counter-claim, which, although contained in the answer, forms no part of the defence that the answer sets up.
    Where a tenant in dower, to whom, as such, certain apartments in a dwelling-house have been assigned, has been compelled for the protection of her life estate, to pay the taxes on the whole building, she is entitled to recover against the tenant occupying the rest of the house such an amount of the taxes so paid as may be justly apportioned to that part of the building that such tenant occupies.
    There is no force in the objection, that there is no contract by the defendant to pay the sum demanded. This law implies a contract by the defendant to repay his just proportion of the taxes, as so much money paid for his use.
    The court held the counter-claim to be bad, for reasons applicable only to the special circumstances of the case.
    Judgment sustaining demurrer to counter-claim affirmed with costs.
    (Before Hoffman, Slosson, and Woodruff, J.J.)
    Heard, January;
    decided, March, 1857.
    Appeal by defendant, from a judgment at Special Term for plaintiff upon her demurrer to a counter-claim, set up in the defendant’s answer.

      H. Brewster, for defendant, appellant.

      W. Gf. Brown, for plaintiff, respondent.
   By the Court. Woodruff, J.

On the argument of the appeal herein, it was urged on behalf of the appellant, that whether the counter-claim demurred to is sufficient as set out in the answer or not, the defendant is entitled to judgment upon the demurrer, on the former and familiar rule, that on a demurrer to the defendant’s pleading, he is at liberty to go back to a previous pleading of the plaintiff, and if that be bad, he is entitled to judgment, although his own pleading be also defective, and that a bad plea is good enough in response to a bad declaration; he therefore insists that the complaint herein does not state facts sufficient to constitute a cause of action.

Whether the rule referred to can avail the defendant in any case it is unnecessary to say. Many defects in a complaint, if not insisted upon by demurrer to the complaint itself, are waived for all purposes. But it is provided expressly, that if the complaint does not state facts sufficient to constitute a cause of action, that defect is not waived though not insisted upon by way of demurrer. If we did not think it quite clear that the objection itself is without foundation, we might deem it material to inquire in what manner and in what stage of the action it should be taken advantage of, and whether it could be urged to defeat the plaintiff’s demurrer to the defendant’s counter-claim, but we prefer to content ourselves with the conviction that the complaint is not liable to the objection.

The complaint shows that the defendant, on or about the 25th of April, 1852, became the owner in fee of a certain house and lot, certain apartments in which had been adjudged and set off to the plaintiff in December, 1851, as and for her dower in the premises; and that the plaintiff, for the protection of her life estate in those apartments, has been compelled to pay the whole of the taxes, etc., on the said house and lot since the said 25th day of April, 1852, while the defendant has been in the possession of the residue of the premises, and in the receipt of the rents and profits thereof.

There is no doubt, that upon these facts, a cause of action has arisen in favor of the plaintiff for the reimbursement to her of so much of such taxes, etc., as is properly to be apportioned to that portion of the premises in the defendant’s possession. The plaintiff has paid money for the use of the defendant. She was compelled to pay it for the protection of her own life estate in the portion of the house which she occupied.

The ground of objection stated by the defendant’s counsel, is, that the complaint shows no contract by the defendant to pay, and no breach of any contract. The answer to this is, that in such case the law implies a contract by the defendant to pay his just proportion. Here is a contract as truly as in other cases where one pays money for the use of another by his request. _

It is further insisted, that the complaint does not state what portion of the premises are in the defendant’s possession, nor that any specified portion is in his possession.

To this the reply is obvious. The complaint does state that the fair and equitable portion of the taxes, etc., properly chargeable upon the defendant’s portion of the premises is $200. If the defendant desired that the complaint be made more definite and certain, he should have applied by motion. The substantive ground of the plaintiff’s claim, and the facts which show her title are averred, and whether the complaint be regarded as seeking an apportionment of the taxes and a judgment that the defendant reimburse to her his just proportion, or as in the nature of a declaration for money paid to the defendant’s use, the essential facts to constitute a cause of action are stated.

The demurrer to the defendant’s counter-claim rests upon its alleged insufficiency, and in considering it, we must take the facts alleged in the complaint, or, at all events, those which are not inconsistent with the averments in the counter-claim as admitted, and the counter-claim under those admissions stands thus :—

The husband of the plaintiff died, seized of the premises, (including the house and lot, before rented, and the adjoining house,) on the 11th day of May, 1848. On the 20th of June, 1851, one Charles Sterling was, by an order of this court, appointed receiver of the rents and profits of all the property and premises in the complaint described, and the order for his appointment directed him to pay the taxes, assessments, and interest on certain mortgages upon the premises, and certain other costs, charges, and annual expenses.

On or about the 26th of December, 1851, the plaintiff’s dower was set off to her, by assigning to her use a part of the corner house and lot.

At some time prior to April 26th, 1851, the heirs-at-law conveyed the property to one James Linden, and on that day he conveyed all his right, title, and interest therein to the defendant, and she has paid all the taxes, etc., on the corner house and lot since that time.

The defendant alleges that the plaintiff paid no rent to the receiver, and that such receiver was compelled to pay taxes, etc., on the corner house out of the rents collected by him “ out of other property belonging to the defendant,” when the defendant was receiving the rents and profits of the corner house and paid no taxes, etc., thereon. That the sums so paid by the receiver amount to $200, which, it is added, “ the plaintiff owes the defendant in his own right as the owner in fee of property, and assignee of James Linden the former owner of the premises, described in the complaint herein, the same has been assigned to the defendant by the said Linden for a valuable consideration duly paid, etc.

We might dispose of the demurrer to this counter-claim by saying, that we fully concur in the opinion given by Mr. Justice B osworth, on sustaining the demurrer at Special Term. We may, however, add, it in nowise appears in what suit the receiver was appointed, nor who were the parties thereto. If it be true that the order appointing the receiver directed him to collect the rents of the premises and pay the taxes, etc., which he paid, we must assume that the order was rightly made, and that it was based upon equities existing between the parties to the suit, whoever they were, which made it proper that lie should pay such taxes, etc., out of the rents collected.

If the receiver collected rents from property not embraced in the order, and if that is what the defendant means by “other property of the defendant,” the receiver is responsible, and the defendant should seek redress from him.

It does not appear that when the receiver collected the rents and paid the taxes, either James Linden or the defendant had any interest in the premises described in the complaint, and if not, they had no interest in the rents collected therefrom. It in nowise appears that the plaintiff was liable to pay rent to the receiver for the premises assigned to her for her dower.

It does not appear that prior to the assignment of her dower she occupied the corner house, and if she did, the adjustment of the taxes, etc., was, for aught that appears, a matter between her and the heirs-at-law, with which neither Linden nor the defendant had any concern.

And we must, moreover, assume that the powers and duties of the receiver, and his acts in his receivership, were under the direction of the court, and that all the rights and equities of the parties affected thereby were properly adjusted and determined by the court in the suit in which he was appointed. If he made any misappropriation of moneys received by him, the party who was injured should seek redress from him.

If we could find, in the facts alleged, any ground for a claim in favor of James Linden, it would at least be doubtful whether there is any sufficient averment of an assignment of such claim to the defendant. The words, “the same has been assigned to the defendant,” etc., in the connection in which they stand, seem rather to refer to the premises than to any such claim for money due Linden.

It may not be difficult to point out other defects in the supposed counter-claim, but enough have been suggested to warrant the conclusion, that the order appealed from must be affirmed, with costs.


source: Caselaw Access Project

author: By the Court. Slosson, J.

license: Public Domain

text:
    Catharine W. Johnson, executrix v. The Hudson River R. R. Co.
    Although, as a general rule, “ ordinary prudence” is all that can be exacted from a railroad company in respect to passengers on the same road, yet the rule is not to be understood as meaning that only the same degree of care is to be required in all cases.
    The only safe interpretation of the rule is, that the company is bound to use a degree of care and vigilance, to prevent accidents and injury to others, which is proportioned to the dangerous character of its business, and of the mode and means of conducting it.
    The true rule may, therefore, be stated in these words: The degree of vigilance which the law exacts in its requirement of ordinary care, varies with the probable consequences of negligence, and also with the command of means to avoid injuring others possessed by the person on whom the obligation is imposed.

      Held, that applying this rule to the facts in evidence before him, the Judge, upon the trial, properly instructed the jury that, 'considering the nature of the business in which the defendants were engaged, and the hazards attending the running of cars in the streets of the city, particularly on a dark night, they were bound to use the utmost care and diligence, and for the purpose of avoiding accidents endangering life, were bound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ, and that if the use of bells and lights upon the cars was a measure by which disastrous accidents would probably be avoided, the omission to use them, if proved to the satisfaction of the jury, was culpable negligence, and it was for the jury to say whether to this negligence the fatal accident which had given rise to the action might not justly be imputed.

      Held, therefore, that applying to the defendants the true rule of ordinary care, the Judge, under the circumstances detailed in the case, could not have required from them a less degree of diligence and prudence than that which he laid down as the measure of their obligation.
    The defendants’ counsel insisted that the Judge erred in leaving the jury to determine whether the defendants should have carried lights or bells instead of determining, as a question of law, whether such use of lights or hells was exacted from the defendants in the exercise of ordinary care.

      Held, that there was no error on the part of the Judge, that he did determine the question of law, namely, that the prudence exacted of the defendants was'that which, in view of the hazardous character of their business, would tend to diminish the danger of accidents, and that he properly left to the jury, as a question of fact, whether the use of lights or bells was a measure of that character.
    The Judge charged the jury, that the deceased person, whose death was attributed to the negligence of the defendants, was hound to exercise only ordinary care; ' and he defined that care as the care and foresight which men of ordinary prudence are accustomed to employ, and which, placed in like circumstances, they probably would have employed.

      Held, that there was no error in this instruction to the jury.

      Held, that the Judge properly refused to charge the jury, that the manner in which the deceased was found on the track of the railway, without any explanation as to how he got there, was presumptive evidence of negligence on his part.
    It appeared on the trial that the deceased was a young man, between the ages of thirty and forty, and in good health, and the Judge charged the jury, that the probable continuance of his life was at least twenty years.

      Held, that the expectation of life is a known scientific fact, to which a Judge, upon the trial of a cause, has the same right to advert as to a known historical fact, and as the expectation of life between the ages of thirty and forty is known to exceed thirty 'years, there was no error in the charge of the Judge.
    Judgment for plaintiff affirmed, with costs.
    (Before Duer, Slosson, and Woodruff, J.J.)
    November 20, 1856 ;
    March 21, 1857.
    Appeal by defendants from a judgment at Special Term in favor of the plaintiff for $4,456.18, damages and costs.
    The action was brought, by the plaintiff as executrix of the last will, etc., of her deceased husband, Peter A. Johnson, and the complaint averred that his death was occasioned by the culpable negligence of the defendants or their servants, a.nd demanded judgment for $5,000 as the pecuniary loss to his widow and children.
    The answer denied the negligence imputed, and averred that the fatal accident was solely owing to the negligence of the deceased himseff.
    The cause was tried before Duer, J., and a jury, at a Trial Term in January, 1856.

      It appeared on the trial, that on the night of the 28th of August, 1853, the deceased was run over by a freight car of the defendants’ on the track of their road in West street at its intersection with Gansevoort street, in the city of New York, and that he died shortly thereafter, solely in consequence of the injuries and wounds which he then received.
    It also appeared that the night was very dark, and it was, in effect, determined by the verdict of the jury, that there were no bells on the horses nor lights on the car.
    It is needless to state more particularly the evidence given on the trial, or any of the exceptions taken in its progress, since the argument at General Term was confined entirely to the exceptions that were taken to the Judge’s charge.
    When the testimony was closed, he charged the jury “ That there were two questions which the jury, in the first instance, must consider, and both of which must be determined in favor of the plaintiff to entitle her to recover.
    These were—1st, Whether the accident, which resulted in the death of thfe deceased, was owing to the negligence of the defendants or their servants?—and, 2d, Whether there was any negligence on the part of the deceased that directly contributed to the üccident? If both these questions were determined in favor of the plaintiff, the next question would be what sum, not exceeding that limited by the statute on which the action was founded, ought to be awarded to her as damages. That it was the exclusive province of the jury to decide these questions; and that his duty was limited to a statement of the rules of law by which their deliberations ought to be governed. That the negligence imputed to the defendants was, that there were no bells on the horses to warn persons of the approach of the car, and no lights on the car to enable the driver to see the track in front of his horses; and that he was driving more rapidly than was consistent with ordinary prudence. That it was his, the Judge’s, duty to instruct them, that considering the nature of the business in which the defendants were engaged, and the hazards attending the running of cars in the streets of the city, and particularly on a dark night, they were bound to exercise the utmost care and diligence; and for the purpose of avoiding accidents endangering property and life, were bound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ.
    To which opinion and proposition, the defendants, by their counsel, did then and there except.
    Hence, if the use of bells and of lights was a measure that the prudence and foresight they were bound to exercise ought to have suggested, and if by such use disastrous accidents would probably be avoided, the omission to use them, if proved to the satisfaction of the jury, was culpable negligence; and it was for the jury to say, whether to this culpable negligence the fatal accident that had given rise to the action might not justly be imputed.
    To which opinion and proposition, the defendants, by their counsel, did then and there except.
    That it appeared to him, for divers reasons, that the driver of a car at night ought to be enabled to see whether there were any obstacles or persons on the track in front of him; and if the light afforded by the lamps in the street was not sufficient for that purpose, the use of lamps on the car seemed to him a necessary precaution.
    To which opinion and proposition, the defendants, by their counsel, did then and there except.
    It was not to be supposed that the driver of the car had seen deceased on the track, and had wilfully run over him.
    To which opinion and proposition,- the defendants, by their counsel, did then and there except.
    It was more probable, that from the want of light he could not see in front of his horses; or, if there was sufficient light, that his attention was directed another way; and, upon either supposition, there was negligence, to which the accident might reasonably be imputed.
    To which opinion and proposition, the defendants, by their counsel, did then and there except.
    That according to the testimony of the witnesses of the plaintiff, there were neither bells on the horses, nor lights on the car, when the accident happened, and that the jury had a right to take into consideration the fact that none of the servants of the defendants who were on the car, neither the conductor nor driver, nor brakeman, had been called as witnesses for the defence, and as their absence had not been explained, it was a reasonable presumption that, if called, they would not have contradicted materially the witnesses of the plaintiff.
    To which opinion and proposition, the defendants, by their counsel, did then and there except.
    The Judge next said, that although the jury might be satisfied that there was culpable negligence on the part of the defendants, still the plaintiff would not be entitled to recover, if the jury believed, from the evidence, that there was any negligence on the part of the deceased that directly contributed to the accident. Certainly he would not have been killed had he not been on the track of the railroad, and if his being there, as seemed to be contended, was conclusive proof of negligence, there was an end to the action. He certainly had not seen or heard the approach of the car in time to make his escape, and if this fact was alone sufficient to bar a recovery, no action like the present, however gross and culpable the negligence of a railroad company, could ever be maintained. It would be a sufficient answer to the plaintiff to say the deceased was on the track of the road, and, therefore, perished by his own rashness and folly.
    To which opinion and proposition, the defendants, by their counsel, did then and there except.
    The Judge then said that, in his opinion, this was not a conclusion that the jury were bound to draw, the deceased was bound to exercise ordinary prudence and no more, and the question the jury were to determine, was whether it appeared from the evidence that there had been a want on the part of the deceased of that care and foresight that men of ordinary prudence are accustomed to employ, and which, placed in like circumstances with the deceased, they probably would employ, and in judging of the conduct and motives of the deceased, they were bound to consider all the circumstances of the case as they had been established by the evidence.
    To which part of said charge, the defendants then and there duly excepted.
    The defendants specially excepted to the phrase, “this was not a conclusion the jury were bound to draw.”
    The defendants also specially excepted to the instruction that “ the deceased was bound to exercise ordinary prudence and no more, and the question the jury were to determine was, whether it appeared from the evidence that there had been a want on the part of the deceased of that care and foresight, that men of. ordinary prudence are accustomed to employ, and which, placed in like circumstances with the deceased, they probably would employ, and in judging of the conduct and motives of the deceased, they were bound to consider all the circumstances of the case as they had been established by the evidence.”
    1. As to that part of the charge relating to the degree of prudence the deceased was bound to exercise.
    2. As to that part of the charge stating the question the jury were to determine, and the question submitted to the jury.
    3. Because, if otherwise correct, it was calculated to mislead the jury. First, in the use of the word “ probably,” and second, in the use of the words “placed in like circumstances,” which tended to make intoxication, or sleep of the deceased, an excuse for the want of care.
    The Judge then stated the evidence bearing upon this branch of the cause.
    On the question of damages, the Judge said, that if the jury should be of opinion, that the plaintiff was entitled to recover, they could give no other or greater damages—not exceeding $5000—than would be sufficient to compensate the pecuniary loss which the widow and children had sustained from his death. There was no certain mode of estimating this loss, as it consisted entirely in a deprivation of the support and maintenance which they would have derived from him had he continued to live, and the question of its amount was therefore one not of positive calculation, but of mere probability. The deceased was a young man, in good health, and the probable continuance of his life was at least twenty years.
    To that part of said charge which speaks of the probable duration of the life of the deceased, the defendants then and there duly excepted.
    During this time it was reasonable to believe that his wife and his children, during their minority, would have been supported by him; and the jury would, therefore, give such damages as in their judgment would be a full compensation for the loss of this support, and no more.
    The said defendants, by their counsel, asked the said Justice to charge the jury, that the fact that the manner in which the deceased was found on the track, without any explanation as to how he got there, was prima, facie evidence of negligence on his part. The said Justice refused so to charge, and to such refusal the said defendants, by their counsel, did then and there except.
    The said defendants, by their counsel, asked the said Justice to charge the jury, that the defendants were not bound to carry bells on their horses when drawing their cars.
    The said Justice refused so to charge, and to such refusal the said defendants, by their counsel, did then and there except.
    The defendants, by their counsel, further requested the said Justice to charge the j ury, that the defendants were not bound to carry lights on their cars when being drawn by their horses through the streets. The said Justice refused so to charge, and the defend ants’ counsel excepted to the refusal.
    The jury found a verdict for the plaintiff, and assessed her damages at $4000.

      Fullerton, for defendants, appellants.

      J. Morrison, for the plaintiff.
   By the Court. Slosson, J.

On the 28th day of August, 1853, at about 8 o’clock in the evening, the deceased, (Peter A. Johnson,) was run over by a freight car of the defendants’, in West street, at its intersection with Gansevoort street, and killed.

The day had been rainy, and the evening was very dark. The verdict of the jury determines that there were no bells on the horses nor lights on the car.

The deceased was a cartman, and was on his return home in the evening, driving up on the east side of the track; a sewer was in the process of construction through Gansevoort street, it had extended across the track in West street; but at the time of the accident, it had been so far completed, as that it had been arched over on the west side to about the middle of the track, while on the east side it was open, so that no vehicle going north could pass on that side beyond the south line of Gansevoort street, at which point there was a mound of earth and some barrels which had been placed there to prevent any attempt at a passage. A temporary bridge bad been thrown across the sewer, where the rails crossed it, to enable the horses attached to the cars to pass over. During the day a pole was placed across the track to prevent carts passing over the bridge, which was taken down when the cars were to pass, and appears to have been removed altogether at night. On the west side of the track carts could pass, according to some of the witnesses, to some little distance north of the sewer, when the projection of a pile of lumber narrowed the passage to nine or ten feet, and just beyond this, a building used as a corporation office, formed another projection, so as to leave between it and the track only four feet four inches. It was shown that ordinary carts are seven and'a half feet wide, while dirt carts are two feet narrower, so that neither description of cart could pass at this point except by running in part on the track itself. This corporation office was nearly opposite the north sidewalk of Gansevoort street, and at the same point there was a pile of stones and dirt from a foot to a foot and a-half in height. One witness says, that the west side of the track, by which I understand him to mean the side west of the track, was impassable on account of the excavation, the dirt, the paving stones, and the corporation office.”

As has been stated, the night was very dark; the sound of the rolling of the car was obstructed by the water on the rails, though the clattering of the horses’ feet was heard half a block off, and might have been heard farther, as one witness states, by one in the street.

The deceased appears to have stopped and tied his horse near the embankment, on the east side of West street, at about twenty feet below the south line of Gansevoort street, and to have dismounted and gone on to the track, for when the cars had passed, he was found lying across it, about six feet south of the embankment.

It is reasonable to conjecture that his object in going upon the track, was to make a personal examination of the bridge over the causeway, with. a view of ascertaining whether he could safely pass over it, with his cart. The car had crushed one of his legs. He was removed to the hospital, and died soon afterwards. He was between thirty and forty years of age, of good habits, and making from $25 to $30 a week by his business. He left a widow, (the plaintiff,) and three infant children, the youngest but three months old.

On the trial, a motion was made for a non-suit on the ground, among others, that the plaintiff had offered no pooof showing affirmatively that the deceased was not guilty of negligence which contributed to the accident, which motion was overruled, and the defendants excepted.

This court has never recognized the rule which seems to be laid down by the Supreme Court in Spencer v. The Utica and Schenectady Railroad Co., (5 Barb. Rep. 337,) to wit: That absence of negligence on the part of the plaintiff is to be shown by him affirmatively, but have held directly otherwise. The case of Britton, admx. v. The Hudson River Railroad Co., recently decided by the General Term of this court, is directly in point. It had been previously so decided in this very case. (5 Duer, 21.)

The Judge, in charging the jury, told them, “that considering the nature of the business in which the defendants were engaged, and the hazards attending the running of cars in the streets of the city, and particularly on a dark night, the defendants were bound to exercise the utmost care and diligence, and for the purpose of avoiding accidents, endangering property and life, were bound to use all the means and measures of precaution that the highest prudence would suggest, and which it was in their power to employ. Hence,” he added, “ if the use of bells and of lights was a measure that the prudence and foresight the defendants were bound to exercise ought to have suggested, and if by such use disastrous accidents would probably be avoided, the omission to use them, if proved to the satisfaction of the jury, was culpable negligence, and that it was for the jury to say, whether to this culpable negligence the fatal accident that had given rise to the action might not justly be imputed.”

To both the general proposition itself, and the application of it by the Judge, the defendants excepted.

The Supreme Court in Brand v. The Schenectady and Troy Railroad Co., (8 Barb. R. 368,) held, “ that ordinary prudence was all that could be exacted from a railroad company, as between it and a foot passenger in the street, being the same rule or degree of care which is exacted, as between each other, in the case of two carriages using a comm on highway to which each has an equal right.”

"With the highest respect for the learning and ability of the eminent Judge who pronounced the decision in that case, I cannot but think that this proposition is open to serious criticism. It seems to me that the only safe rule in such a case, is this, to wit: That the company is bound to use a degree of care and vigilance in respect to the use of the means whereby accidents or injury to those using the same thoroughfare in common with themselves, may be avoided, which is proportioned to the dangerous character of its business, or of the mode and means of conducting the same, while the foot passenger is bound to that degree of caution which persons thus exposed on a public thoroughfare ought in common prudence to exercise. This prudence may in both be called ordinary, yet the degree of diligence and precaution which it exacts of each is as widely different, as is the risk to which each exposes others from the want or absence of it.

In the case of Kelsey v. Barney and others, (2 Kern. R. 425,) which was a case of collision between two vessels, Johnson, Justice, in defining ordinary care, uses this language: “ The degree of vigilance which the law will exact, as implied by the requirement of ordinary care, must vary with the probable consequences of negligence, and also with the command of means to avoid injuring others, possessed by the person on whom the obligation is imposed. Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care; where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party’s power, ordinary care requires almost the utmost degree of human vigilance and foresight.”

The learned Justice refers in his opinion to the case of the Scioto, in which Judge Ware uses the expression that “a vessel entering a harbor in the night time, is put on her utmost vigilance.” Hot that the vessel so entering the harbor would be responsible, if by any possible means the danger of a collision might have been avoided, but that from the increased hazard arising from the circumstance of entering the harbor in the night time, an increased vigilance and watchfulness would be required, which Judge Ware exemplifies by saying, that under such circumstances the master and crew ought to be on deck, and in such parts of the vessel as to be able to control her motions, and see any vessel which lies in her track. It certainly would not be contended that it would be necessary that both the master and the crew should all be on the look-out and on deck if the vessel were entering the port in broad day-light. The principle asserted is, that the vigilance and care are to be proportioned to the risk and danger to be avoided.

The good sense and soundness of this view of the question cannot, I think, be doubted. • If the vigilance and care are to be proportioned to the danger to be avoided, it becomes immaterial by what name the obligation is designated or defined. If the Judge in the case at bar had instructed the jury, that in the exercise of ordinary care, the defendants were bound to the exact degree of vigilance which he stated as the measure of their actual obligation, I do not see how the charge could have been complained of; and certainly if the standard of care which he laid down was correct, the question—whether a proper definition was given to it or not ?—is wholly immaterial.

The Judge, in applying the rule to the case in hand, defines his meaning so clearly, that it cannot, I think, be misapprehended.

He told the jury that, if the use of bells and lights would probably prevent the occurrence of such disasters, and if their use was a measure that the prudence and foresight the defendants were bound to exercise ought to have suggested, it was culpable negligence in them not to have used them. Now I think it must occur to the commonest apprehension, that the very least or lowest degree of vigilance which could be required at the hands of the defendants in running loaded cars at night, with four horses, through the streets of a crowded city, would be the use of bells and lights, or some similar precaution, to give warning of their approach. In submitting to the jury, therefore, the question of their use as a measure called for by the prudence which the law exacted from the defendants, the Judge left them clearly within the range of the rule of .ordinary care, as commonly understood, if he did not, indeed, limit them to it altogether. Nor was this left to them as a question to be arbitrarily determined; its propriety was to be tried by this criterion, to wit: Whether the use of bells and lights would probably prevent the occurrence of disasters of this nature? Of this the jury were exclusively the judges, and if, in their opinion, such would be the beneficial result of the use of bells and lights, then, as upon any rule of prudence, the defendants were bound to guard against the danger of such accidents, their use was a measure called for by the degree of care which the law imposed upon the defendants.

Nor do I think that in judging of the propriety of the use of bells and lights, the jury were led by any thing in the charge to adopt a standard of obligation on the part of the defendants, which was not the true one, or that the result would have been at all different had the Judge prefaced his definition of the prudence to which the defendants were bound, by calling it “ordinary care.” Nor do I think that in any definition of ordinary care, as applied to these defendants under the circumstances detailed in this case, he could have required a less degree of vigilance and prudence than that which he laid down as the measure of their actual obligation.

- The good sense of the charge SQems to me to be plainly this : The defendants, considering the great hazard to which their business exposes the lives and safety of the passers by and travellers in the street, are bound to use that diligence and care, if practicable, by which the danger of casualty may be diminished. They cannot run their cars without any precautions whatever, and no precautions will suffice, save such as tend to secure against the occurrence of the disasters to which the exercise of their business peculiarly exposes others; and if, in the judgment of the jury, the use of bells and lights would have this tendency, then the use of that expedient was one which the prudence, exacted of them by the law, required at their hands. The test of the obligation to use them, as the case was thus put to the jury, was not the formal definition of the rule of diligence, but the tendency of the expedient to diminish the danger of those disasters, which the defendants were bound, upon the commonest principles of humanity, and under the lowest obligations of a reasonable diligence, to guard against.

• The defendants’ counsel denies altogether that the use of bells or lights is called for by the rule of ordinary care; on the contrary, he says, the degree of care which should be exercised in any given case, is a matter of law to be determined by the court; and that in leaving to the jury to determine whether the defendants should have carried lights or bells, the court shifted from itself to the jury the duty of determining whether the defendants ought not to have exercised more than ordinary care.

We think there is a fallacy in this proposition. The Judge did not leave to the jury to say, whether the defendants were bound to carry bells and lights, but whether the use of them was called for by that prudence which they were bound to exercise. In other words, whether, in view of the peculiarly hazardous character of their business, and under all the circumstances of the case, it would have been a prudent measure on the part of the defendants, rendering danger of accident less liable; and if so, then, as a matter of law, he instructed them the defendants were bound to have used them; and not to have done so, was negligence.

He therefore did determine the question of law, to wit: That the prudence exacted of the defendants was that which, in view of the hazardous character of their business, would tend to diminish the danger of accident, leaving to the jury only this question—whether the use of bells and lights was a measure of that character? which was a question purely of fact.

I think the rule laid down by the Judge at the trial is the true one, to wit: A degree of care proportioned to the danger to others—whether this be called “ ordinary” care, or “the utmost,” or “highest” care, or “diligence,” is immaterial, a mere question of words; so long as the standard is right, its name is "a matter of no consequence. A great principle may easily be lost sight of in this adherence to definitions. It seems to me that no other rule can be safely adopted. It is one which is not dependent on contract or the consideration of a compensation for service, but is founded on the general principle of humanity towards others, and the obligation so to use one’s own property and exercise one’s own rights as not to injure others.

The Judge also charged, that as respects the deceased, he was bound to exercise only ordinary care; and to this there was an exception. This is certainly not a proposition that the defendants should quarrel with, as it is the one they contend should be applied to themselves.

The difficulty of applying the rule of diligence to either party in cases of this kind, arises from the very terms in which the law has, from custom, clothed the definition of it. “ Ordinary ” care, in its common acceptation, means the same thing, to whomsoever applied, and under whatever circumstances. The only solution to the difficulty, is, in measuring the requirements of “ordinary care” by the circumstances of the party; and to use the language of the learned Judge, in Kelsey v. Barney, already cited: “ By the probable consequences of negligence, and by the command of means to avoid injuring others, possessed by the person on whom the obligation is imposed.” As respects these defendants, the probable consequences of their negligence would be death, or maiming to the party injured; and as to the command of means to avoid such a disaster, if the use of bells or lights would tend to such a result, it is for them to show that it is not in their power to adopt such an expedient, or they should be estopped from denying that the obligation of prudence exacts it at their hands.

When, however, we speak of ordinary prudence, as applied to a passenger in the street, we mean something widely different. His being on the track, may, under certain circumstances, be negligence, which would relieve the company from liability for the consequences of an injury to him, but it is not a negligence which exposes them to hazard; the prudence which he is to exert is one which is necessary for his own protection, and must be of precisely that degree which is commensurate with the danger to which he is exposed. To attempt to pass in front bf a carriage driven slowly, at a moderate distance, might not violate any rule of prudence, while to make the same attempt in front of a car, approaching at the same speed, and at the same distance, might be extremely hazardous. There is no applying “ ordinary care ” by a fixed measure, to all possible cases. It must vary in the degrees of its requirement according to circumstances. “ Reasonable care” would have been a much happier and more intelligible expression. We think the Judge sufficiently and promptly defined it when he said that it was “that care and foresight which men of ordinary prudence are accustomed to employ, and which, placed in like circumstances with the deceased, they probably would have employed.”

The defendants also contend that it was error in the Judge to have charged that the negligence of the plaintiff, which would excuse the defendants, must have contributed directly to the accident.

This ruling is in exact accordance with the language of the court, in Caldwell v. Murphy, (1 Duer R., 233,) and with the decision in Carroll v. N. Y. and N. H. Railroad Co., (1 Duer, 571.)

The Judge further told the jury, that it was probable that from the want of lights the driver of the car could not see in front of his horses, or if there was sufficient light, that his attention was directed another way; and that upon either supposition, there was negligence to which the accident might reasonably be imputed, and to this part of the charge also the defendants excepted.

As the Judge had already left it to the jury to say whether the use of lights in the cars was a measure that the prudence and foresight which the defendants were bound to exercise ought to have suggested, this part of the charge must be read in that connection; and thus read, the meaning of it is, that if the jury should find the question thus submitted to them in the affirmative, then the absence of lights, enabling the driver to see in advance of his horses, was negligence; or if in fact there were lights, but his attention was not given to his horses, but diverted elsewhere, that would be negligence. It was reiterating in another form the proposition already advanced by him.

We think the Judge properly refused to charge that the manner in which the deceased was found on the track, without any explanation as to how he got there, was prima fade evidence of negligence on his part.

He was not discovered until after the car had passed over him, and to hold that, because he was then found lying athwart the track, his position was presumptive evidence of negligence on his part, which, unexplained, would excuse the negligence of the defendants, would be giving the latter the benefit of their own wrong, and would forever preclude the possibility of a recovery in this action.

The Judge further told the jury, in this connection, that the deceased “certainly had not seen or heard the approach of the ear in time to make his escape, and if the /act of his being found on the track was alone sufficient tó bar a recovery, no action like the present, however gross and culpable the negligence of a railroad company, could ever be maintained.”

The defendants contend that it was error in the Judge to tell the jury that the deceased “ certainly had not seen or heard the approach of the car in time to make his escape.”

As it was not pretended that the deceased was a voluntary victim, it seems to follow that he could not have seen or heard the approach of the cars. Was it negligence in him not to have done so ? The defendants contend that it was. That question was not withdrawn from the jury, for they were told that if they believed from the evidence that he was guilty of any negligence directly contributing to the disaster, the plaintiff could not recover. The effect of the language in question is this: The deceased was, certainly, not on the road for the purpose of self-destruction; no presumption of this kind can be entertained, and if so, then the mere fact that he was found dead on the track does not, of itself, raise a presumption of negligence on his part which will bar a recovery.

The Judge also charged, that the omission of the defendants to call either the conductor, driver, or brakeman, as witnesses on their behalf, unexplained, raised a reasonable presumption, that if called, they would not have contradicted materially the witnesses of the plaintiff, and to this there was an exception.

This is in clear accordance with an elementary rule, that a party who has the power to produce the best evidence on the subject, and omits to do it without excusing the omission, justifies by such omission the presumption that the evidence, if adduced, would operate to his prejudice, or, at least, would not help his case. (1 Starkie’s Ev. 34; C. & H.’s Notes, n. 298.)

On the question of damages, the Judge, among other things, said to the jury, that the “ deceased was a young man in good health, and the probable continuance of his life was at least twenty years.” The defendants contend that it was error thus to have instructed the jury in respect to the probable continuance of the life of the deceased. The evidence was, that he was over thirty years old—how much does not appear; but the reasonable inference from the expression, “ over thirty years of age,” is that he was under forty.

I have been referred to certain tables prepared from the combined experience of seventeen life insurance offices, from which it appears that the expectation of human life at thirty years of age is 34-43 years, and at forty years is 27-28 years, so that the Judge was within limits when he said that it was at least twenty years. This is a matter of experience, about which it was not error in the Judge to instruct the jury.

On the whole case,, the judgment should be affirmed, with costs.

Justice Woodruff dissented from the foregoing opinion and its conclusions.


author: Woodruff, J.

text:
    Cobb v. Lackey & Brandon.
    When the defendant, in an action to recover personal property, excepts to the sureties in the plaintiff’s undertaking, if one fails to justify, and for that reason a new surety is substituted, a new undertaking must be executed. The original undertaking cannot be altered by inserting therein the name of the new surety, and by the latter signing it, without the consent of the other surety, and of those for whose benefit or protection it is required to be given.
    When the original undertaking was altered, after notice of exception to the sureties therein, on one of them failing to justify, by inserting the name of a new surety, who signed it, and made an affidavit of justification before one of defendants’ attorneys, and in the presence of the attorneys of both parties, at the time and place for which notice of such justification was given, and the attorneys then separated without obtaining an approval of the sureties by a Judge of the court, and plaintiff's attorney, subsequently, obtained ex parte, an approval of the undertaking, as thus altered, that approval, on motion, was set aside, as being irregular, but the plaintiff was permitted to give a new undertaking, with sureties who should justify on due notice. The fact that the substituted surety made an affidavit of justification, under the circumstances stated, before one of defendants’ attorneys, was held not to be a waiver of the defendants’ right to object to the insufficiency of the undertaking, or to the irregularity of the ex parte allowance, the sufficiency of the undertaking not having been assented to by defendants’ attorneys in writing, nor proved to have been distinctly assented to orally.
    (At Special Term,
    May, 1857.
    Before Woodruff, J.)

      The facts are fully stated in the opinion of the court.
   Woodruff, J.

The defendants herein move to set aside the certificate of justification, obtained by the plaintiff on an applica< tion to one of the Justices, ex parte, under the circumstances, which may be briefly stated thus. The action is to recover the possession of personal property. An undertaking having been given to the sheriff, he has taken the property. The defendants excepted to the sureties, and gave notice thereof. The plaintiff gave notice of justification, and the parties appeared at the court room. One of the sureties was examined, and the other refused to answer fully, and an adjournment was had to enable the plaintiff to procure another surety, who should justify. On the further appearance, instead of preparing a new undertaking, the plaintiff’s attorney inserted, in the undertaking previously given, the name of the new surety, and it was signed and acknowledged by him, and he was examined by the defendants’ counsel. Although these proceedings were had in the court room, the papers were, none of them, laid before any Judge of the court. Whether any Judge was in the court room at the time or not, the oath was not administered to the sureties by the Judge, but the statement of the sureties, being reduced to writing, was sworn to by the sureties respectively, before the counsel for the defendants, who is also attorney for one of the defendants, and a commissioner of deeds; and the new bail acknowledged the execution of the undertaking before him. At the time of the alteration of the undertaking by introducing another surety, it does not appear that either of the other parties thereto, (one of whom had been examined, and the other had declined answering in full,) was present or consented to such alteration, though their names were contained therein, and the instrument was thus converted into an -undertaking by three instead of by two, as it was originally executed by them.

After the alteration had been made, and the acknowledgment and examination were completed, the parties separated; upon what terms and upon what understanding is now a matter of dispute. On the part of the plaintiff evidence is given that the counsel for the defendants declared himself satisfied with the undertaking and with the sufficiency of the sureties, and that the plaintiff’s attorney (under the belief that it was not necessary to procure a certificate from a Judge, or to appear formally before a Judge at all, when the defendants’ attorney, as commissioner, had certified to the oath, and as he believed and states had declared himself satisfied,) left without doing any thing further.

On the part of the defendants, it is denied that their attorney or counsel was 'satisfied with the undertaking or the sufficiency of the sureties, or that he did consent to any approval of the undertaking. It is insisted that he consented to administer the oath to the sureties, and to take the acknowledgment, but that he did not in fact intend to waive, nor could he properly be understood thereby to waive, any objection to the sureties or to the undertaking itself.

Uothing further was done for several months, when the sheriff, not having been furnished with any evidence of the approval of the undertaking, requested the defendants’ attorneys to indorse their approval thereon, and each of them declined. After a further delay of more than four months, the plaintiff’s attorney applied to one of the Justices, ex parte, and on an affidavit stating the circumstances as claimed by him, obtained an allowance of the undertaking as sufficient, and a certificate thereof.

The object of the present motion is to set aside that allowance.

It was irregular to apply to a Judge, ex parte, and procure an approval of the undertaking. If an application for such approval was necessary, and no doubt it was, it was a submission of the question, whether the undertaking was a proper one, and the sureties were sufficient, to the Judge for his decision; upon that subject a “ finding” of the Judge was necessary, (Code, § 196,) and this must be had upon notice, (§ 195 and § 210.)

It is not improbable that, if the plaintiff’s counsel had insisted upon going before a Judge at the time the bail were examined, the approval might then have been had, but in the conflict of the affidavits on the subject, I cannot say that any case is made by the plaintiff which should prevent the defendants from insisting upon the irregularity. If there did not now appear any substantial objection to the sureties, or if a clear case of consent to the allowance was established, a new allowance might, perhaps, be ordered, or the ex parte allowance be affirmed, notwithstanding the irregularity; and yet so far as the plaintiff seeks to support the proceedings by proof of the assent of the defendants’ counsel, the conflict of affidavits here well affirms the wisdom of the rule, that consents or assents, given by attorneys or counsel out of court, should be in writing, to prevent uncertainty and misapprehension. But the serious objection to the present undertaking is, that after it had been executed and delivered to the sheriff, and had so far served it spurpose, that, in reliance thereon, he had taken the property, it was altered, by the introduction of another and additional name therein, without the consent of the other parties thereto, or so far as appears, of the sheriff. Although it may be said, that such an alteration after the execution of the instrument tends to the relief and not to the prejudice of the other two sureties who were theretofore bound thereby, it is not clear that for that reason the alteration was as to them immaterial and did not affect their liability. I am. not satisfied that a bond or other instrument given by two, can, without their consent, be converted into a bond or instrument by three or more without impairing its validity. I doubt very much, whether, when the alteration of an instrument after execution is in a material particular, it is proper to inquire whether the parties bound thereby can be prejudiced. It is no longer the same instrument. They have never consented to become so bound. But it is not necessary that I should dispose of this matter upon that ground. The Code is explicit ; section 193 applied to this proceeding by section 210, provides that notice of justification being given as therein mentioned, “in case other bail be given, there shall be a new undertaking in the form prescribed in section 189.” Under this provision, I am clearly of opinion, that the undertaking ought not to have been approved, even if the matter had been regularly presented to the Judge.

If the consent of the defendants’ counsel would operate to prevent his now setting up the objection, that consent is not in writing, and is not clearly proved to have been orally given. The allowance was irregularly obtained. It is at least doubtful whether the undertaking, after having been altered, has any validity ; and I am therefore of opinion that the defendant ought not to be required to rely upon it as his security.

It is proper to add, that this motion is made on notice to the sheriff, and no facts are submitted on his part, raising the question, whether his protection requires that this ex parte allowance should be sustained to- any extent, or whether it can be so sustained ? It does not appear that he has acted in reliance thereon, nor that he has not the property seized still in his custody.

H. P. Allen, for plaintiff.

Chas. W. Sandford, for defendants.

The allowance of the undertaking must be set aside; the defendants’ costs of this motion, $10, may abide the event of the suit; and the plaintiff may have leave to give a new undertaking within ten days, with proper sureties, who shall justify, on the usual notice, and such leave may be, (if deemed necessary,) made a condition of setting aside the present allowance.


text:
    Jacob H. Fake v. Edgerton and Brittan.
    Absence of material witnesses is sufficient cause for postponing a trial, when it is shown that they are material, and that due diligence'was used to procure their attendance.
    When that is not shown, a trial should not be postponed on an allegation that such grounds for it exist, nor will an inquest, taken upon a denial of a postponement asked on such grounds, be set aside, merely because the affidavit to procure it was drawn, and the motion for it was made by an attorney’s clerk, who did not know enough to present properly to the court the facts then known to exist, and which formed the grounds of the relief sought.
    Nor will a regular inquest be set aside if a defendant delays to move until he has been arrested upon an execution against his person, issued after the return of a previous execution against his property, when it appears that paying the judgment, will be the payment of a just debt, and a protection to the defendant against all claims upon the demand on which it is recovered that may be made by the third person, whom the answer, as a defence, alleged to be the person with whom alone it was contracted.
    (At Special Term,
    Sept., 1856.
    Before Woodruff, J.)
    The defendant, Edgerton, who alone answered, moved in October, 1856, to set aside an inquest taken on the 27th of the previous June. The taking of it was not only known at the time, but the defendant then moved for a postponement of the trial, which motion was denied. The present motion was not made until after an execution against property had been issued and returned unsatisfied, nor until after some six weeks subsequent to his arrest upon an execution against the person. The action was "brought for goods sold and, delivered by the plaintiff to the defendants, and the defence was, that they were sold by John S. Fake, and not by the plaintiff. There was no pretence of a defence, if the plaintiff was the owner and vendor of the goods, nor that payment for them had been made to John S. Fake. The other facts, and the grounds on which the motion was made, sufficiently appear in the opinion of the court.
   Woodruff, J.

The defendant, Edgerton, moves to set aside an inquest in the above action, taken on the 27th day of June last. The case was on the calendar of the previous day, but was postponed upon the application of the defendant, in consequence of the engagement of his counsel in the United States District Court. An effort was made on the 27th, by the defendant, Edgerton, (who alone had put in an answer,) to procure .a further postponement, but the grounds of the application were not deemed sufficient, and the cause was therefore called, and the defendant not appearing, the plainfiff proceeded to an inquest, and a judgment was entered thereon.

The grounds upon which the present motion is urged, on behalf of the said Edgerton, are:

1st. That he has a meritorious defence.

2d. That his witnesses were absent from the city, when the cause was called for trial.

3d. That his counsel was actually engaged in the District Court at the time the inquest was taken, and that the clerk, in his office, by whom the application to postpone was made on the 27th of June, and by whom the affidavit for that purpose was prepared, had not sufficient experience and skill to prepare the affidavit properly, - and that the postponement was denied by reason of its insufficiency.

In relation to this last suggestion, it may not be amiss to observe, that the practice of employing students, and in some instances, of mere errand boys, to attend court, prepare affidavits, and make motions, would not formerly have been permitted at all; and if by reason of the immediate engagement of counsel, his clerk be allowed to suggest such engagement, it is by no means an act of prudence to entrust to him the conduct of an important motion, and the preparation of the papers therefor. It is not too ranch to say, that if the opposing counsel and the court, depart from the established rule governing the conduct of proceedings in open court, so far as to give indulgence to such an application, the inexperience or want of skill of the clerk ought not afterwards to be urged as a ground for any relief upon facts then existing, and which ought then to have been laid before the court.

The engagement of counsel in the trial of a cause in another court is generally regarded as a ground of indulgence, and it seems was so treated when this cause was first called for trial, and for that reason it was postponed to another day; but when it became apparent that further delay would not only involve the loss of a term, but would have delayed the cause over the summer vacation, for three months, it does not seem to me that such excuse should have prevailed.

The absence of the defendant’s witnesses was undoubtedly sufficient cause for postponement, if it was made to appear that their testimony was material, and that due diligence had been used in the endeavour to procure their testimony. That, however, was not shown, and it is conceded on the present motion, that the .postponement of the cause was properly denied upon that ground.

The remaining material inquiry is, then, Ought the inquest to be set aside, notwithstanding the previous laches of the defendant, on the ground that he has a meritorious defence, and that, therefore, injustice will result from the application of a strict rule ?

The action is brought against two defendants, Edgerton & Brit-tan, as partners, under the firm name of T. T. Edgerton & Co., for goods alleged to have been sold to them by the plaintiff. And it appears that an order for the arrest of the defendant was obtained on the ground that the debt was fraudulently contracted.

The question whether such order was or was not properly made, does not come under review on this motion. Although the defendant denied the fraud, that was no part of the issue to be tried. The only defence to the action was, that the plaintiff did not sell and deliver the goods to the defendants. And it now appears by the affidavits, that this defence proceeds upon the allegation that the goods were sold to the defendants by John S. Fake, and not by the plaintiff.

The defendants therefore, had the goods, and are liable to pay for them; and the merits of the controversy present the single question, who was the owner of the goods sold, or rather does it appear from the facts laid before me, that any injustice will result from permitting the present plaintiff to enforce the judgment ?

In this connection, it is important to notice, that this inquest was taken in June last, and no steps were taken to obtain relief therefrom, until the middle of October. In the mean time, execution had been issued against the property of the defendants, and returned unsatisfied; and an execution against the body of the defendant being thereupon issued, the defendant was arrested thereon, on or about the 2d day of September, and having given bail for the jail limits, the defendant afterwards, as it is alleged, departed therefrom, whereupon the plaintiff commenced a suit against the sheriff for an escape, which is now pending. Under such circumstances, it would not be a harsh exercise of discretion to deny the present motion, upon the ground of delay in making the application. On the contrary, it is rather in conformity with the long approved practice of the courts, to deny it on that ground alone. If, however, to this be added, that it does not appear that injustice will be done by suffering the judgment to stand, there will be no room for hesitation. And upon that subject, the delay itself, not only after- notice of the judgment, but for six weeks after the defendant was taken in execution, indicates, pretty clearly, that the defendant did not feel himself in any danger of suffering any injustice.

But upon the papers laid before me, it is not doubtful. There is no pretence that the goods were not sold, nor that the money was not due therefor. And it is conceded, that John S. Fake sold the goods to the defendants. And although the defendant, and the persons whose affidavits are produced by him, state that he sold them in his- own name, and as the owner thereof, (not disclosing any principal,) yet the defendant does not intimate, that had the suit been brought in the name of John S., he has any defence which could defeat a recovery. While on the other hand, the plaintiff produces not only the affidavit of John S., stating that in making the sale, he was only agent for the plaintiff, who was the real owner of the goods, and that the defendant knew that he was so acting. But he also produces the affidavit of the co-defendant, Brittan, that the ownership of the plaintiff was stated to Mm in the presence of the defendant, Edgerton, before the delivery of the goods was completed, and long before this smt was brought.

I am not disposed to try the merits of the cause upon conflicting affidavits on such a motion as the present; but I advert to this state of the proofs before me, and to the additional fact also stated, that the proofs taken on the inquest were to the same purport and given by the same John S. Fake, and the co-defendant, Brittan, for the purpose of saying, not so much that all pretence of any defence is refuted, as that the defendant is abundantly protected against any injustice to be apprehended from any claim'by John S. Fake to recover for the same goads, and that, in connection with the long delay of the defendant in making his motion, the indication is very strong that there is no good faith on Ms part in the motion itself.

The motion must be denied.


text:
    Mallory v. Wood & Brown.
    When an action is tried by the court, without a jury, it cannot be referred to the General Term for its decision, primarily, of any question of fact or of law.
    The only mode of obtaining a review of any decision on such a trial, whether made during its progress or at its close, is by an appeal under § 348 of the Code.
    (At General Term,
    October, 1856.)
    These points were decided, and the opinion of the court at General Term, as delivered by Hoffman, J., is reported in 14 How. Pr. R. 67.

       In many of the practice cases reported in this volume only the points decided are published. This course is generally pursued in respect to cases already reported in Howard’s or Abbott’s Practice Reports. It is believed that, in respect to such cases, the profession will prefer a correct statement of the matters decided, with a reference to the volume in which they have been reported, to a re-publication of the cases at length in the reports of this court, as the profession generally take the Practice Reports, and a duplicate of such cases can be of no great service. This course will enable the reader of the Reports of the Superior Court to ascertain from them its decisions on questions of practice, and to find the reasons for such decisions when he may desire to examine them, and will leave more space for cases of more permanent interest.—J. S. B.


text:
    Williams v. Horgan & Horgan.
    Where one of several defendants, who has by separate answer made a separate defence, and is not united in interest with the others, succeeds on the trial, he is not in any action, legal or equitable, entitled to costs, as of course, but must apply for them to the court. (Code, § 306.)
    But if there is a union of interest, and the defendants have, by their answer, denied the allegations of the complaint, whether they answer jointly or separately, and if the case be one of those mentioned in section 304, then, if either defendant obtains a verdict, he will, as a general rule, be entitled to costs, as a matter of course, under section 306.
    But, although the defendants be sued as joint contractors, yet, if they answer separately, and either sets up a defence personal to himself only, as infancy, or the like, and succeeds at the trial, it is within the discretion of the court to award him costs, or to deny them to him.
    (At Special Teem,
    November, 1856.
    Before Slosson, J.
    Slosson, J., decided as above stated, and the case is reported in 13 How. Pr. R. 139.

       The learned Judge intimated in his opinion in this case, that when a plaintiff sues several as joint contractors, and proves that only a part of the defendants were ever liable, he cannot recover against either. It is, probably, now well settled, that he may recover against such as are proved to have been parties to the con tract, and that the others may have a verdict and judgment in their favor. (Claflin v. Butterly & Devin, 5 Duer, 327.)—Rep.


text:
    Buchanan v. Morrell, and others
    The Code, as it read in 1866, does not authorize an extra allowance of costs in an action by a judgment creditor, to set aside transfers of property made by his debtor, and to procure the appointment of a receiver of such property, and of its proceeds and profits, and to compel the assignee to account for and deliver such property, proceeds and profits to the receiver, to be applied by the latter-to pay the judgment. It is not one of the actions specially named in § 308.
    It is not an action for the recovery of money, within the meaning of those words, as used in § 308, and sub. 4 of § 304, of the Code.
    Those words are used in the same sense in both of these sections, and do not include actions in which relief, other than a judgment for money, must be granted to enable a plaintiff to maintain the action, although the ultimate result in view and purpose is to realize money. These words, as here used, mean an action in which the plaintiff merely seeks to recover a judgment for a sum named.
    (At Special Term,
    Dec., 1856.
    Before Bosworth, J.)
    Bosworth, J., so decided in this case, which is fully reported in 13 How. Pr. R. 296


text:
    McCullough v. Brodie, et al.
    An action cannot be referred, except by consent of parties, merely because the trial of it will require proof of various small items of damage. To justify a compulsory reference, the trial must involve “the examination of a long account on either side,” according to the ordinary acceptation of the word account.
    The only fact which authorizes a compulsory reference is the same, under the Code, as when the Revised Statutes alone gave the power to refer. (2 R. S. 384, § 40; Code, § 211, sub. 1; 19 Wend. 31; 25 id. 681; 6 id. 603; Van Rensselaer and others v. Jewett, 6 Hill, 313.) This case is reported in 13 How. Pr. R. 346.
    (At Special Term,
    Dec., 1856.
    Before Bosworth, J.)


text:
    The Merchants’ Bank of New Haven v. Henry Dwight, Jr.
    Although a debt was fraudulently contracted, or an obligation was fraudulently incurred by a defendant, yet if, subsequently thereto, the plaintiff, with full knowledge of the fraud, settles the original debt or obligation, and enters into a new contract with the defendant, upon different terms, and upon additional consideration, in an action upon the new contract, the defendant cannot be held to bail merely because the original debt or obligation, was fraudulently contracted or incurred. In such a case, if the debt for the recovery of which, or the obligation on which the action is brought, was not fraudulently contracted or incurred, the defendant cannot be held to bail. The order, refusing to vacate an order of arrest, on which defendant was held to bail in the sum of $45,000, reversed. (13 How. Pr. R. 366.)
    (At General Term,
    Dec., 1856.
    Before Oakley, Ch. J., Duer, Bosworth, Slosson, Hoffman and Woodruff, J.J.)

      M W. Stoughton, for defendant and appellant.

      James T. Brady and Iribbeus Chapman, for plaintiffs.
   In the opinion delivered, after stating the facts at length, Bosworth, J., who delivered the opinion of the court says:—These facts present this question: Is a defendant, who was guilty of a fraud in incurring an obligation, which has been surrendered by another party to the contract, after he had discovered the fraud, and who thereupon took a new obligation, in incurring which the defendant was guilty of no fraud, liable to be arrested on the latter obligation, by reason of his fraud in incurring the first ?

When a defendant is sued in an action arising on contract, to recover a debt, or a sum which he has obligated himself to pay, the Code does not authorize an arrest, because the defendant was guilty of a fraud in incurring a prior and different obligation to pay the same money. To authorize an order for his arrest, he must have been guilty of a fraud in incurring the obligation for which the action is brought, in which the order of arrest is made or applied for. Code, § 197, sub. 4.

......The contract, or obligation, on which this action is brought, was made or incurred without any fraud being practised to procure it. It was accepted as a settlement of the transaction, in respect to which the alleged fraud was practised, and with full knowledge of it. I think this ground sufficient to require a reversal of the order appealed from.


text:
    Cushman v. Martine, et al.
    To render an appeal, from a judgment of a court at General Term, to the Court of Appeals,'a stay of all proceedings upon the judgment appealed from, a copy of a proper undertaking must be served with the notice of appeal.
    Idling and service of a copy of an undertaking on a day subsequent to that on which the notice of appeal" was served, will not operate as a stay.
    The court which rendered the judgment appealed from will not, on such a state of facts, order proceedings stayed pending the appeal.
    It will not so order unless the proceedings upon appeal are amended and validated upon a motion made for the purpose, and with the assent of the sureties in the undertaking. (Reported in 13 How. Pr. R. 402.)
    (At Special Term,
    December, 1856.
    Before Bosworth, J.)


text:
    Latham v. Bliss & Childs.
    When persons, severally liable, are united as defendants, but appear by different attorneys, and answer separately, and after issue joined, and after the action has been noticed for trial, settle, and, as part of the terms of settlement, agree to pay to the plaintiff the legal costs of the action, the plaintiff is entitled to only one bill of costs. He cannot have a full bill against each defendant. He is entitled to all the disbursements actually made, and which would have been taxable if the defendants had been sued separately.
    He is not entitled to a term fee for a term commencing subsequent to the settlement, although the action had been noticed for such term, and a note of issue filed, and a calendar had been made for such term, containing such action. (Reported in 13 How. Pr. R. 416.)
    (At General Term,
    December, 1856.
    Before Oakley, Ch. J., Bosworth, Hoffman, and Slosson, J.J.)


text:
    Hoyt v. Sheldon, executor of Thompson, et al.
    Section m of the Code has provided a uniform mode of bringing before the court matters of defence which existed when the answer was put in, but of which the defendant was then ignorant, as well as matters of defence which have arisen after issue joined. That is to be done by supplemental answer.
    As section 469 of the Code continues in force, all the pre-existing rules and practice of the courts, not inconsistent with the Code itself, the settled rules and practice of the courts of law and of Chancery, must be consulted, in determining whether the application is, in substance, one of strict right, or is addressed solely to the discretion of the court.
    Such applications should be granted, as a general rule, unless they have been too long delayed, or are clearly frivolous, or the defence presented is so inequitable in its nature that the permission sought should be refused for that cause.
    On the facts of this case, held, that the motion could not, properly, have been denied on the mere ground of laches.

    The court will not, as a general rule, after the time to answer has expired, allow a supplemental answer to be put in, to set up a technical defence, which may operate as a forfeiture of a just claim. But when the cause of action is one of equitable cognizance, although it may be one of strict legal right, and can be enforced only by depriving a defendant of property bought in good faith from an assignee of a common debtor of the plaintiff and the defendant, and which property, on principles of general equity, might, as properly, have been applied to satisfy the claim of the defendant as that of the plaintiff, the court will not attempt, on such a motion, to determine the equities of the parties, and refuse leave to set up the defence.
    The court will not do so, when, upon the settled principles of equity proceedings, the particular defence may be overruled, if giving effect to it according to its legal operation, would defeat a cause of action contrary to the intent of the parties to the transaction which constitutes the supposed defence.
    "When it cannot be well decided, except upon a hearing of the whole case, whether as between the parties to the action, it would be inequitable to give effect to the defence, if proved; and the court is competent to dispose of that question at the hearing, as may be just, a supplemental answer will be allowed.
    (Before Oakley, Ch. J., Bosworth, Hoffman and Woodbuff, J.J.)
    The court decided as above stated, at a General Term held by the Justices above named. The facts of the case, so far as they affected the decision made, and the opinion of the court, by Bosworth, J., are fully reported in Abbott’s Pr. R., vol. iv., p. 59; together with an opinion of Hoffman", J., stating the grounds of his concurrence in the general result, that the order appealed from should be reversed, and leave granted to the defendant to file a supplemental answer on the terms stated in the opinion of the court.
    Wm. M. JEvarts, for plaintiff.

      A. L. Jordan, for defendant and appellant.


author: By the Court. Bosworth, J.

text:
    Draper, plaintiff and respondent v. Snow, defendant and appellant.
    George R. Hasewell entered into a written contract with the plaintiff, and the defendant signed a guaranty written thereon. The contract and guaranty read thus:—
    “Penna. Zinc.

      “ 350 shares, 3$ B 60. Hew York, April 3d, 1854.
    “ I have purchased of Theo. S. Draper, three hundred and fifty shares of the stock of the Penna. and Leigh Zinc Co., at three and three-eighths dolls, per share, payable and deliverable, buyer’s option, in sixty days, with interest at the rate of six per cent per annum. Geo. R. Hasewell.’’
    “ I guarantee the within contract. Geo. M. Snow.”

      Held, that neither the written words of the guaranty, nor that and the contract of Hasewell when considered together, expressed any consideration for the guarantee ; and that, therefore, the latter being an agreement for the default of another was void. That an averment of extrinsic facts, which, if expressed in the instrument, or fairly imported by it, might constitute a consideration, did not obviate the difficulty.
    To satisfy the statute of frauds, a guaranty by one person of the performance by another of his contract, must, in terms or by fair construction, disclose the actual consideration of the guaranty, or, at all events, a consideration sufficient to make a contract obligatory at law. When it does not disclose any consideration, t.he guaranty, as a contract, is absolutely void.
    Judgment for defendant, on a demurrer to the complaint.
    (Before Oakley, Ch. J., Bosworth, Woodruff and Slosson, J.J.)
    December 27, 1856.
    This action comes before the court, on appeal by the defen aant, from an order made by Ch. J. Oakley, overruling a demurrer to the plaintiff’s amended complaint. It was in the words following, viz:&emdash;
    The amended complaint of the above-named plaintiff, shows to the court&emdash;
    That on the 3d day of April, 1854, he was in the actual possession of the certificates of 350 shares of the stock of the Pennsylvania and Lehigh Zinc Company.
    That on the 3d day of April, 1854, one George R. Hasewell entered into a contract with the said plaintiff in the words and figures following, that is to say&emdash;
    “Penna. Zinc.
    “350 shares, 3f B 60. “Hew York, April 3d, 1854.
    “I have purchased of Theo. S. Draper, 350 shares of the stock of the Penna. and Lehigh Zinc Co., at $3f per share, payable and deliverable buyer’s option in sixty days, with interest at the rate of six per cent, per annum. Geo. R. Hasewell.”
    That before entering into the said contract with the said Hasewell, and as an express condition thereof, the said plaintiff required from the defendant above-named., his guaranty of the performance by the said Hasewell of the different stipulations on the part of the said Hasewell contained therein.
    That therefore at the time of the making of the said contract above set forth, the said defendant indorsed thereupon his certain guaranty, in the words and figures following, viz.:
    “ I guarantee the within contract. Geo. M. Snow.”
    That thereupon in consideration of the giving of the said guar. anty by the said defendant as aforesaid, and not otherwise, and within the time limited therefor in the said contract, the said plaintiff delivered to the said Hasewell the aforesaid 350 shares of the said stock.
    That neither the said Hasewell, nor the said defendant, have ever paid the said plaintiff therefor, as provided in the said contract, although often requested by the said plaintiff so to do.
    Wherefore the said plaintiff demands judgment against the said defendant, for the sum of $1181.25, with interest thereon, from the 3d day of June, 1854, besides the costs of this action.
    The defendant demurred to the amended complaint, because it does not state facts sufficient to constitute a cause of action against the said defendant, and specified the following as grounds of objection:—
    1st. That the said complaint sets forth as the foundation of the action against the defendant a collateral agreement, or special promise in writing of the defendant to answer for the debt, default, or miscarriage of another person, (one George R. Hasewell,) which agreement or promise in writing has, as appears by the said complaint, no consideration expressed therein.
    2d. That no fact, or facts, are stated in the said complaint showing any breach of the contract of the said George R. Hasewell set. forth in the said complaint, or any loss or damage thereby suffered, for which the defendant, under his collateral agreement, set forth in said complaint, is bound to answer, or is legally responsible.
    An order was entered overruling the demurrer, and from that order the defendant appealed to the General Term.

      W. 3. Scott, for the plaintiff.

      W. Bloomfield, for the defendant.
   By the Court. Bosworth, J.

This case and that of the Union Bank v. Coster's Executors, (3 Coms. 204,) are, in some respects, alike. In both cases the guaranty has no date. The court, in the Union Bank v. Coster's Executors, held, that the guaranty and the contract, on whieh it was written, should be deemed to haVe been made at the same time. (Id. 211.) In that case, they were moved to have been made at the same time. In the case before us, the complaint alleges, and the demurrer admits, that they were made at the same time.

Do the material facts of the two cases correspond in other respects ?

In the Union Bank v. Coster's Executors it was held, that the consideration of the guaranty appéared upon the instrument of which the guaranty was a part. That, applying to it the ordinary and settled rules of construction, it clearly appeared what the precise consideration of the guaranty was, and that the terms of the whole instrument necessarily excluded the idea that the consideration was, either in whole or in part, any thing else.

In that case, Heckscher & Coster agreed to accept and pay at maturity any drafts on them at sixty days’ sight issued by Messrs. Kohn, Daron & Co., of Mew Orleans, and negotiated through their bank to the extent of $25,000. And the defendant’s guaranty read thus: “ I hereby guarantee the due acceptance and payment of any draft issued in pursuance of the above credit.”

When that guaranty was made, it guaranteed the payment of no pre-existing or co-existing debt of Heckscher & Coster.

The whole instrument was treated as being a request of each party signing it, addressed to the bank to which it was delivered, to purchase drafts that might be drawn in pursuance of it. Heckscher & Coster agreed to accept and pay such drafts at maturity. The defendant agreed that they would so accept and pay. The future purchase of such drafts, on the faith of the whole instrument, was the consideration, as well of the guaranty as of the special promise of Heckscher & Coster. That this was the whole actual consideration was as clearly expressed by the instrument itself as if it had been formally stated in the most explicit terms. The agreement of the defendant, therefore, was not only in writing, but the writing itself expressed the consideration of it.

In the case before us, the paper, or contract, signed by Hasewell, states that he had made a purchase of 885 shares of stock at a price which amounted to $1,181^-, the stock to be delivered and money paid at his option, in sixty days.

Irrespective of the extrinsic facts alleged in the complaint, a stranger to the transaction, looking at the whole instrument, and to that only, could not know whether the guaranty was an inducement to Draper to sell the stock, and was a constituent part of the consideration for his contract to sell and deliver, or whether some special consideration was paid to- Snow for making it, or whether it was, in fact, made without any consideration.

It is, indeed, apparent that the stock was to be delivered on a day subsequent to the date of the guarantee, and that the liability of Hasewell to accept it and pay for it became absolute on his executing the contract, and not before. (2 R. S. § 3.) The consideration of his contract is expressed by the writing which he signed. If the consideration of the guaranty is so clearly and fully disclosed by it that the court can see that it is a particular thing, and nothing else, then it is unnecessary to state it otherwise than by setting forth, in full, the whole instrument, of which the guaranty forms a part.

The plaintiff, instead of relying upon the terms of the whole instrument, as expressing the consideration of the guaranty, has deemed it expedient to allege, “that before entering into said contract with the said Hasewell, and as an express condition thereof, the said plaintiff required from the defendant above-named, his guaranty of the performance by the said Hasewell of the different stipulations on the part of the said Hasewell contained therein. That therefore at the time of the making of the said contract above set forth, the said defendant indorsed thereupon his certain guaranty, in the words and figures following, viz.” ....................

The plaintiff has therefore stated what was the actual consideration of the guaranty. Is the consideration, which is thus formally averred, clearly shown, by a just construction" of the instrument itself, to be the actual, the whole, and the only consideration of the guaranty.

If it is not, and if some other consideration is equally consistent with the terms of the instrument, and all inferences which a proper construction of it will warrant, then the extrinsic facts alleged to show the actual consideration may be controverted by the answer, and a failure of the plaintiff to prove them would entitle the defendant to a verdict. An entire want of consideration would be a defence to the action, independent of the difficulty presented by the statute of frauds.

Suppose, upon the trial of an issue raised upon these allegations of extrinsic facts, it should appear that the plaintiff and Hasewell had concluded their contract, and that Hasewell had executed and delivered it, before any thing had been said by either party upon the subject of having its performance by Hasewell guaranteed, and that the defendant, at the request of either, or of both, signed it, without any consideration therefor, paid, or agreed to be paid, could the plaintiff recover?

I think he could not recover, and that on the whole instrument, the necessary inference is, that the defendant guaranteed the performance by Hasewell of a contract existing when the guaranty was signed; and that it not only does not appear from the instrument itself, what was the actual precise consideration of the guaranty, but that it was made without any consideration is not repugnant to the fair and natural import of its terms.

In the Union Bank v. Coster's Executors, it was held, that it was apparent from the instrument itself, that the future purchase of drafts, on the faith of the guaranty, was the consideration of the guarantor’s promise, that the drawers should accept and pay them at maturity.

The decision in Brewster v. Silence does not conflict with that made in the Union Bank v. Coster's Executors. That such is the judgment of the Court of Appeals, is evident from Gates v. McKee, (3 Kern. 232-238.)

In the former case, it was said that the note was the debt of the maker, and the guaranty was the engagement of the defendant that the maker should pay his note when it became due. There was nothing on the face of the whole instrument from which it could be inferred, with certainty, what the consideration of the guaranty was.

In Brown v. Curtiss, (2 Coms. 225,) the defendant, although his written contract was in the form of a guaranty, was held to have contracted directly with the plaintiff for his own benefit, and upon full consideration received by himself; and that on the particular facts of the case, his contract was an original and not a collateral one, and would have been good without any writing ; that his contract was one made for the payment of a debt owing by himself, and not by a third person. Under that view of the case, it did not decide that the contract satisfied the statute, but that the case did not come within the statute. (Id. 229 and 234.)

In Dunham v. Manrow, (2 Coms. 533,) the decision was put on the ground that the case did not fall within the statute. Three of the seven Judges who heard the argument were of the opinion that the case came within the statute, and that the guaranty was void. Kone of them held, that if within the statute, the guaranty was valid.

In Hall v. Palmer, (2 Coms. 533,) the plaintiffs failed to recover. The three Judges who held that Dunham v. Manrow was a case within the statute, also held that the two cases were not distinguishable, and voted to affirm. Three of the four Judges who held that Dunham v. Manrow was not within the statute, voted to reverse, but on what ground the report of the case does not state. The other of the four voted to reverse, on the ground that the contract of the guarantor was upheld by no consideration in fact. (Id. 557.)

In Brewster v. Silence, all the Judges, except one, concurred in the judgment given. Unless there is a substantial distinction between that case and the present, the decision made in the former must control the one to be made in this.

We think no such distinction exists, and that the order appealed from should be reversed, and judgment given on the demurrer, in favor of the defendant.

Entertaining this opinion, we deem it unnecessary to consider the second point, made by the defendant, on the argument of this appeal.

Order appealed from reversed, and judgment ordered for the defendant.