text:
    Joseph Howard, plaintiff and respondent, vs. John W. Freeman and others, defendants and appellants.
    1. The rule of law, existing prior to the constitution of 1846, which rendered the refusal of a judge, on the trial of an action at common law, to postpone it, when application was made therefor, upon the ground of the absence of a material witness, a subject to be reviewed, in the same or another court, and if erroneous, remedied, has not been changed by any legislation before or since the adoption of that constitution.
    2. The former exercise by courts of equity of the right to extend the time for the examination of witnesses, or postpone the hearing of a cause, was reviewable at least in the same court; and the fusion of common law and equitable jurisdiction in the same courts, and the adoption of the same mode of trial, by viva voee examination of witnesses on the trial in the presence of 'the court, in actions of legal and equitable cognizance, has subjected actions of an equitable nature to the same rules, as to the right of postponing the trial of them in consequence of the absence of material witnesses, as existed previously in regard to those of a common law nature
    3. A review of a refusal to postpone a trial, upon an application therefor made upon the ground of the absence of a material witness, may be had by the party applying therefor, when the trial has been proceeded in and results adversely to him (whether he has withdrawn therefrom or not) by a special motion founded upon affidavits. If he remain, it may be had by a motion for a new trial at special term upon a case made, or if the trial take place before a judge alone, on an appeal to the general term from the whole decision. Per Jokes, J.
    4. Upon appeals from an order or judgment at special term, the court at general term is not confined to simply reversing or affirming the order or judgment appealed from, but may make such as should have been made in the first instance.
    Before Barbour, Garvin and Jones, JJ.)
    Heard December 10, 1866;
    decided October 21, 1867.

      This was an appeal from an order made in November, 1866, at special term, refusing, to open and vacate a default and inquest, findings of fact and conclusions of law contained in a decision of the judge of the court at special term, and all proceedings therein, and to set aside the same for irregularity and a mistrial of the issues, and to stay proceedings until October term, until the return of a commission issued by the plaintiff, upon an application of the defendants, for such relief upon motion.
    The motion was originally made upon various affidavits of two of the defendants, (Freeman and Hedden,) and two of their attorneys, (Messrs. Larocque and Bowdoin,) and one of a Mr. Arthur, all the papers used on the trial of the action to procure a postponement of the same, and a copy of the stenographer’s minutes of what took place on such application; which affidavits were sworn to at various times during the months of June, July, August and October. It was opposed upon affidavits of the plaintiffs’ counsel, attorney, said Arthur and others, and by various papers used' on the trial, on the hearing of such application to postpone. On the hearing of such motion, two affidavits which were offered of two of the defendants’ attorneys, (Messrs. Larocques,) and all evidence of remarks made by the judge on the trial were excluded.
    The trial-and inquest took place in June, 1866, (28th and 29th,) after five different applications to postpone the same made in that month on several days therein, (5th, 6th, 14th, 20th and 28th;) the last being just previous to the trial, and made on orders for a commission, affidavits of the defendants, their attorneys and others, verified just previous to such various applications, and opposed on an affidavit of the plaintiff’s attorney.
    It appeared by such affidavits that such application was made among other things upon the ground of the absence of a material witness for the defendants and the expectation of an ability to procure Ms testimony before or at another trial.
    The case came before the court at general term, upon all the papers used at special term, on the hearing of the motion and on them only.
    The motion was denied, and the defendant appealed from the order denying it.

      Jeremiah Larocque, for the defendants, appellants.

      H. A. Cram, for the plaintiff, respondent.
   By the Court, Jones, J.

The first question to be determined is : Assuming the defendants to be entitled, on the merits, to the relief they ask, have they pursued the proper course to obtain it ?

Under the law as it stood in this state prior to the constitution of 1846, a decision by a circuit judge refusing .to postpone the trial of a cause, on the ground of the absence of material witnesses, was regarded as so far affecting a substantial right as to be subject to review, and, if erroneous, to reversal. (Brill v. Lord, 14 John. 341. Ogden v. Payne, 5 Cowen, 15. Hooker v. Rogers, 6 id. 577. People v. Vermilyea, 7 id. 369, cited from p. 385.)

There are many decisions as to what are and what are not sufficient causes to entitle a defendant to a postponement, as to the papers and their contents on which he should apply, as to what circumstances will justify a denial of the motion, and what terms can be imposed as a condition of granting it, and the subject occupies considerable space in the works of the various text writers on Practice. (Gra. Prac. 284-289.) If the judge had uncontrolled discretion to grant or refuse a postponement, these numerous decisions would never have been called forth, nor would learned text writers have devoted so much space to the discussion of the subject.

I do not find that the Code, or any legislative enactment or judicial decision, has altered the law as it stood, in this respect, prior to 1846. The power of a judge, sitting at the trial of a common law action, to grant or refuse a postponement, is not now, any more than it was then, within his uncontrolled and uncontrollable discretion; but that power must still be exercised according to the established rules and principles; and his decision is subject to review, and, if erroneous, to reversal; unless the right to such review has been taken away. Two questions then arise: Has such right been taken away? If not, in what mode, and by what course of procedure, can such review be now obtained? Before considering these questions, it will be well to inquire whether, as this is an action which would formerly have been a suit in equity, the defendant, under the present system, was entitled to a postponement of the trial, on the same grounds, and for the same reasons, as a defendant to an action at law is entitled to a postponement thereof; and,' whether a decision denying such postponement, in an action of this character, is subject to review, the same as a similar decision in an action at law.

I have been unable to find any decisions by the late court'of chancery upon the subject of putting off the hearing of a suit by reason of the absence’ of witnesses, or as to whether a decision refusing such postponement is subject to review. From, the nature of the proceedings in equity, one could hardly expect to find such decisions.

As an almost invariable rule all the testimony in an equity suit was taken, prior to the hearing, before an officer of the court, under an order to produce witnesses within forty days. This time could be extended once, ex parte and after that could be further extended upon notice. (Hoff. Ch. Pr. 406.) When the cause came to a hearing, it was heard upon the written testimony of the witnesses as taken by this officer. It necessarily follows that motions to put off a hearing by reason of the absence of witnesses, would rarely (and but for the exceptions hereafter mentioned, would never) arise. All motions for time to obtain the testimony of witnesses would necessarily arise on application to extend the time of the running of the order to produce witnesses. I find it laid down in a standard work on equity practice, without the citation of any decisions to support the proposition, that the court will grant one extension of time, ex parte, on being satisfied that no unreasonable delay has taken place in taking the testimony, or upon some excuse for neglect, as sickness, or unavoidable absence of the client or solicitor, (Hoff. Ch. Pr. 467;) as a further extension could be obtained on special motion, upon notice to the adverse party, it necessarily follows that when a reasonable ground for a further extension was shown, it would be granted. What would be a reasonable ground for such further extension we are not informed by any decisions in this state, but it may be fairly deduced from the practice of the court in granting an extension, ex parte, that the same grounds which authorized such order ex parte, would, if satisfactorily established, after opposition from the adverse party, call for a further extension.

Thus the principle of the rule upon which courts of law acted in postponing trials was equally applicable in courts of equity; and that principle was, to give a party who is guilty of no negligence a reasonable opportunity to produce his witnesses. A court of equity surely cannot be more rigorous than a court of law, in its requirements of a party, who seeks a further opportunity to procure his testimony. It is, therefore, safe to say that a court of equity would always extend the time of the order to produce witnesses^ when a case was .presented such, as would call on a court of law to put off a trial.

As there are no decisions concerning the proceedings to be taken on an application for an extension of the order to produce witnesses, so there are none on the question as to whether a decision denying such application can be reviewed, or if it can be, how it is to be reviewed; but the power to review and the mode of such review is apparent from the plenary powers of the chancellor who had entire control over every act and order of the vice-chancellors by means of an appeal. (Hoff. Ch. Pr. 3.) Under so full a power as the chancellor possessed, it would be singular, if the question of his supervisory power over so important an order, as the prevention of a party from producing his testimony, had ever been mooted.

It may be, that if the chancellor himself denied a motion to extend an order to produce witnesses there could be no review; it is manifest that in such case there could be no review in the Court of Chancery, for the chancellor was the head of that court and no other court could have power to review unless given by statute; if, then, in such case there ■ could be no review, it resulted from the fact that the legislature did not see fit to give an appeal in such cases to the court of errors. But the fact, that a right to a review of a decision made in one court is not given to a party, by way of appeal to another court, does not militate against the existence of such right in the court in which the decision was made.

I have before said, that, but for exceptions to be mentioned, a motion to put off a hearing by reason of absence of witnesses would never arise. These exceptions are that some matters were allowed to be proved orally at the hearing, and that, under the Revised Statutes, (2 R. S. 180, 1st ed.) an examination of witnesses might have been had before a vice-chancellor, in which case, by rules established by the chancellor, the testimony was to be taken, either in the mode adopted at nisi prius, or in that in which an examiner took it; the examination was to proceed de die in diem; if a material witness could not be procured at the time and place assigned, the vice-chancellor might postpone the taking of the testimony to some future day, on payment of costs or otherwise in his discretion, and upon such terms and conditions as he might think proper.

In the first of those, cases it might, it is true, become necessary to move a postponement of the hearing, on the ground of the absence of a witness; and in the second, to move a postponement of the examination. The absence of decisions upon motions to postpone made' in those two cases, is not at all surprising. In the last, even an examination before a vice-chancellor was very rare, so much so, that, since the year 1830, the assistant register never knew an instance. Such examination, moreover, was never granted, except in special cases, and was then set down for a particular time and place. It is hardly probable that counsel, in such special cases where the day assigned would naturally be arranged to suit their convenience and that of the witnesses, would ever be unprovided with their witnesses, except for some unforeseen matter occurring after the assignment of the day. In the first case, proof at the hearing was confined to the verification of exhibits and was scarcely ever permitted, except when mere handwriting was the only thing to be established. With such a limited area for the introduction of oral proof at the hearing, occasions, requiring a postponement by reason of the absence of witnesses, could rarely arise. If, in either of those cases, a motion for a postponement had become necessary, I think there can be but little question, it would have been disposed of on principles analogous to those which obtained on an application for an extension of an order to produce witnesses, and by that analogy a decision denying the motion would have been subject to the supervisory power of the chancellor.

It is thus apparent that the mere fact of this being a case which would formerly have been a suit in equity, does not render either the principle, that a party should have a reasonable opportunity to procure his testimony (which principle lies at the foundation of the common law rules relative to postponing trials,) or the common law principle that a denial of such an opportunity is reviewable, inapplicable to it. In fact these principles obtained to the same (if not to a greater) extent in equity, as in courts of law; the only substantial difference being, that in equity they were almost invariably invoked on a motion for time to produce witnesses, while at common law they were invoked when a cause was called for trial by a motion for a postponement. This difference was a necessary consequence of 'the modes adopted by each court for the trial and disposal of issues.

But now the cumbrous machinery through which an issue of fact was disposed of in the court of chancery, consisting of orders to produce witnesses, taking the testimony of the witnesses in writing before an officer of the court, moving to suppress the depositions, and finally hearing the cause on the written testimony remaining after all motions to suppress, expunge and re-examine had been disposed of, is, with the court of chancery, swept away, and a much more simple mode of trial similar to that at nisi prius substituted.

The trial of an issue of fact in an equity suit is now brought on and conducted in the same way as a similar issue in an action at law, with the single exception, that the same is not tried before a judge and a jury, but before a judge only; as there is no jury, of course, all the rules and principles relative to the empannelling, swearing, challenging, charging and refusing to .charge the jury, to the separation, misconduct and verdict of a jury, are inapplicable to the trial of an action in equity.

One of the great differences between the former (chancery) and the present mode of trying an issue, in an equity suit, is, that in chancery it was the general rule, that all the testimony (with but few exceptions) must be taken out of court, and the cause heard on such written testimony; whereas, now, the general rule is the same that obtains in the trial of issues at law, viz. that all the testimony must be taken orally before the judge trying the cause. The exceptions, where it need not be taken, orally before the judge trying the cause, apply equally to actions at law as to those in equity.

The parties to a suit in equity must now (except in special cases, which apply as well to actions at law) have their witnesses present in court, at the time the cause is called for trial, so that they may be examined orally, précisely as they are required to have them in an action at law. This being so, I can perceive no reason why a party defendant should not have the same reasonable opportunities to obtain his witnesses, in case they are not present, as are granted to him in an action at law, upon his showing the same grounds to exist therefor. I have shown there is nothing in the principles of equity, or in the practice of the late court of chancery, which would forbid his having such opportunities. The common law rule, requiring witnesses to be examined orally before the tribunal which tries the cause, having been substituted in place of the former equity rule, it must carry with it the right of a party to apply for an opportunity to produce his witnesses, in the mode which then existed and still exists in actions at law, viz. a motion, when the cause is called for trial, for a .postponement of the trial. As a concomitant to this right to move a postponement, there must, also, exist a right to review a.decision denying the motion to postpone, either in such' mode as then obtained in actions at law, or such mode as may have been substituted therefor, since a right, to review a decision denying á reasonable opportunity to procure witnesses, was recognized both at law and in equity; and since the mode of reviewing such decision in equity has become inapplicable, in consequence of the abolition of the chancery mode of taking testimony, and the mode of review in actions at law has become, applicable, in consequence of the substitution of the common law in place of the chancery mode of taking testimony.

It may, however, he suggested, that as equity actions are tried before a judge, without a jury, and as he can have, or can himself extend, his term as long as he pleases; and as he can attend at any adjourned day; and as he will have necessarily heard all the testimony; he can try a cause piecemeal, like a referee, and by adjourning the trial from time to time, do justice to a party who, at the time the trial was called on, was without any, or some one, of his witnesses, and had a good excuse for not having them in attendance; and therefore the rules that apply to actions at law, do not apply to suits in equity—at least, not to their full extent. That full justice may thus be done, in this way, is perhaps doubtful; but, conceding that it could, still, such a mode of trial seems to me incompatible with the spirit and intent of the present Code of Procedure. That spirit and intent is, clearly, that the trial before the court (in which manner actions in equity are to be tried) is, when commenced, to go on de die in diem, the same as trials by jury-. True, the judge may have a discretion as to- suspending a trial to permit the production of a witngag who has unexpectedly left the court room, or to permit the obtaining of testimony, the necessity of which, first became apparent on the trial; but he has the same discretion on atrial by jury. In a trial by the court the suspension may, perhaps, be for a longer period than in a trial by jury, but the discretion to suspend should be exercised with great caution, and in the case of a trial by jury, the sus-pension should never extend beyond the next court day, while in a trial by the court it should never, without the consent of both parties, be for a period longer than two days.

There does not appear to be any substantial reason why, under the present system, there should be any difference between the conduct of a trial by the court and a trial by jury,* save in those matters above referred to, which have reference to the jury and to the length of time for which a trial may be suspended.

No such difference should be inaugurated. A glance at the various terms of the court and the judges assigned to hold them, will show how extremely inconvenient, if not wholly impracticable, it would be for the various judges to extend their special terms into the periods at which they are to hold jury trial or general terms, thus interfering with their other duties, and disarranging the whole business of the court. There is one case in which the judge, either at a trial by the court or a trial by jury, may properly exercise a discretion in extending his term, and this arises from the necessity of the case. It is when a cause, commenced and proceeded with from day to day, is at the expiration of the term unfinished; in such case the term may well be extended so as to enable the cause to be finished, otherwise all the previous labor and time expended on it will be lost. But judges are exceedingly careful to prevent even this cause for an extension of term arising.

One other suggestion may be noticed, that ■ in equity causes, after the judge has made his decision on the trial , before Mm, an account may frequently be ordered by that decision to be taken by a referee, which cannot be taken during the continuance of the term, and therefore there is a necessity for extending a special term, which does not apply to a trial term. But this is not so. The taking of such account by a referee forms no part of the trial. It arises out of, and is founded on the decision made at or after the' close of the trial, but it is an entirely distinct proceeding in the cause. The referee’s report may be confirmed by a judge other than the one who tried the cause. A party dissatisfied with the report must except to it; and those exceptions may be heard and disposed of by a judge other than the one who tried the cause, by either overruling them and confirming the report, or by sustaining them and sending back the matters before the referee, and from an order made in this respect at special term, an appeal will lie to the general term. Finally, judgment in a cause may be entered by a judge other than the one who tried the cause, and other than the one who confirmed the referee’s report; such judgment must be founded on the decision of the judge who tried the cause, and the confirmed report of the referee, and must conform thereto, although it may contain other directions which are necessary to carry out the decision of the j udge who tried the cause.

These principles are fairly deducible from the case of Chamberlain v. Dempsey, lately decided by the Court of Appeals.

It follows from these principles that the taking an account by a referee, pursuant to a decision made by the judge at or after the close of the trial of a cause by the court, the hearing of exceptions to the report of the referee, its confirmation and rendition of judgment, constitute no part of the trial of a cause, but are distinct steps and proceedings in the cause; it is, therefore, wholly unnecessary to extend the term at which the trial is held until these steps and proceedings have been had.

It must, however, be distinctly understood that it is not intended to deny the power of a judge, in an action triable by the court, to commence the trial, and then, with the consent of both parties, to adjourn to a time beyond his then term when he will not be engaged in other duties of the court, and, if necessary, to have his term extended to that time; but this power is one which should be but rarely exercised, even with the consent of both parties, and then with extreme caution. It is, however, intended to distinctly deny the power of a judge in a cause triable by the court, after he has commenced the trial of a cause, against the objection of either party to suspend the trial to a future day, or to extend his term under like objection, for the purpose of going tin with the trial, except, as abové stated, he may suspend the trial for a short time, (say at the furthest two days,) to enable a party to procure * a witness who has suddenly left the court room, or to procure testimony, the necessity of which, first became apparent on the trial, and may also when the trial of a cause has been commenced and proceeded with from day to day, but is not finished at the expiration of the term, extend his term sufficiently long to enable the cause to be finished, proceeding therein from day to day.

I have consequently come to the conclusion, that the practice which, prior to 1846, obtained only in actions at law, of moving to put off a trial for the term, together with the rules and principles which regulated such motion, are now applicable to all actions, whether they are actions which would formerly have been denominated actions at law, or such as would have been denominated suits in equity; and if such motion be denied in an action of the latter class, there is the same right to review the decision as if it was made in an action of the former class.

This point having been established, I will now consider the questions (which were passed for the purpose of considering the one just disposed of) whether the right of reviewing a decision denying a postponement has been taken away, and if not, then in what mode and by what course of procedure such review can now be had ? These questions are so intimately connected that the reasoning applicable to the one, naturally runs into that applicable to the other; they will, therefore, be considered together.

Under the judicial system that existed prior to the adoption of the constitution of 1846, a party defendant who claimed error to have been committed at circuit in refusing his motion for a postponement of a cause, could pursue one of two courses to procure relief from such error.

First. He could voluntarily permit his default to be taken, and then, upon affidavits showing the application made at the circuit, to put off the trial, the papers on which it was founded, its denial, and that an inquest had been taken against him, make a non-enumerated motion'to the Supreme Court to set aside the inquest, (Ogden v. Payne, 5 Cowen, 15;) or he might appear and contest on the merits; and if the cause went against him pursue the same course to obtain a new trial. (Hooker v. Rogers, 6 Cowen, 577.)

Second. He could appear and contest on the merits; and if verdict passed against him, then make a case, and on an enumerated motion to the Supreme Court, move for a new trial on the ground of error in refusing a postponement, as well as on the ground of any other error committed on the trial. (People v. Vermilyea, 7 Cowen, 369, 385.) It cannot be doubted but that every court of record has now, in- causes depending therein, the same power to hear motions and set aside proceedings for irregularity, and review decisions made at a trial, as the former Supreme Court had in causes depending therein, unless such power has been taken away or restricted by some subsequent statutory provision.

I have been unable to find any statutory provision expressly taking away or restricting, either the power to set aside an inquest or default resulting from a denial of a motion to put off a trial, or the power to review such decision, on a motion for a new trial on a case. If either of these powers have been taken away or restricted, it must be because no means have been provided for the hearing of the motion. But I think ample means have been provided. There has been a mere change of the forum in which the motions are to be heard. At one time, in the former Supreme Court, all enumerated and non-enumerated motions had to be heard at a general term of that court. At that time both an enumerated motion for a new trial on a case, and a non-enumerated motion to set aside an inquest had to be made at a general term. Afterwards, in 1830, an act was passed creating special terms of the Supreme Court for the disposal of non-enumerated motions ; and thus the forum for the hearing of these motions (with a few exceptions) was changed from the general to the special term. Afterwards, in 1832, an act was passed requiring certain enumerated motions, among them motions for a new trial, to be made, in the first instance, before a circuit judge. Thus, the forum for hearing these motions, in the first instance, was again changed.

Under the present system, the following enumerated motions, among others, to wit, a motion for a new trial, on a case or exceptions, or otherwise, is to- be heard at a special term or circuit,, in the first instance, except that exceptions may be heard, in the first instance, at a general term, if the judge trying the cause so order at the trial. (Code, § 265.) All non-enumerated motions must be heard at special term, except when otherwise directed bylaw. (Rule 40 of General Rules.) Thus, ample means are provided for the hearing and deciding of all those enumerated motions for a new trial on a case, and all those non-enumerated motions to set aside proceedings which, during the existence of the former Supreme Court, were heard and decided by it.

It is, however, strongly insisted, that a decision made in -a cause by one judge of a court, cannot, on a subsequent proceeding in the same cause, be overruled by another judge of the same court, as the two judges are possessed of equal powers and jurisdiction; and therefore a motion of this character cannot be made at special term, but the relief must be obtained by appeal from the judgment. The right of one judge, on a proceeding before him in a cause, to reverse a decision made by another judge of the same court in the same cause, depends, in a great measure, on the judicial system adopted by a government. This state has, however, chosen to invest one judge, on certain proceedings had before him, with power to reverse a decision made by another judge, in previous proceedings had before him on a motion for a new trial. Thus, section 265 of the Code provides, that all motions for a new trial, upon a case or exceptions, or otherwise, shall be heard, in the 'first instance, at a circuit or special term. Under this section, this court has held that where a motion for a new trial is made at a special term, the judge holding the term, although he may not be the judge who tried the cause, is bound to hear the motion and examine it on its merits; and if he is unable to concur in the views of the judge who presided at the trial, then to reverse his decision, and order a new trial. "Were this not so, parties would be subject to the delay of waiting, until the judge who had presided at the trial held a circuit or special term, or, in this district, until he held a special term. I am aware that the usual course has been, for the judge at special term to deny the motion for a new trial, pro forma; but he is not obliged to do so, although he may be so requested by the parties. And it may be somewhat doubtful whether he has any right to do so. Indeed, in some cases, where it appeared on the face of the order that the motion was denied, p-o forma, the general term has refused to entertain an appeal. At all events, if either party desire it, he is bound to examine the case and make an actual determination of the questions involved.

This reviewing of a decision made by one judge in a cause, by another judge of co-ordinate power in a subsequent proceeding in the same cause, is by no means new. In the time of-the former Supreme Court, one circuit judge was authorized, on a bill of- exceptions, demurrer to evidence or case made, to review a decision made by another circuit judge on the trial of the cause. (Laws of 1832, ch. 188.) Such a review is, therefore, not antagonistic to our judicial system.

How this motion is one which, under the former system, would have been a non-enumerated motion. Its character has not been changed, and it must, therefore, under our present system, be heard at a special term, by the judge who may preside when the motion is moved, and such judge is as much bound to hear it, although it involves a review of a decision made at the trial of the cause by the judge who presided-thereat, as he would be to hear an enumerated motion for a new trial on a case, involving a similar review.

The conclusion to which I have arrived is, that a party defendant who feels himself aggrieved by a refusal to postpone the trial, whether such refusal be made on a trial by jury or a trial before the court, may withdraw from the trial, and if the trial proceeds, and the cause is decided against him, he may, upon affidavits showing the application to postpone, the papers upon which it was founded, its denial, and that a decision has been made against him, make a non-enumerated motion at special term to set aside such decision; he may also remain and try the cause on the merits, and in case of a decision against him, either pursue the same course to obtain a new trial, or may, if the trial was- by jury, under section 265, move at special term on a case, for new trial, alleging as one of the grounds of error the refusal to postpone the trial; or if the trial were by the court, then, under section 268, may appeal direct to the general term, alleging as cause for reversal the refusal to postpone. In this case, the defendant adopted the first course. After the denial of his motion to postpone, he withdrew and suffered a default. They proceeded to take an inquest against him. The trial was finished. The judge decided the-cause against him; and made and filed his decision, in writing. This ended the trial, as I have shown above. The defendant then moved, at special term, to set aside this trial and decision.

Under the views above expressed, the motion was properly made, and should have been heard and decided on its merits. As it was not so heard and decided, the order refusing to do so below, should be reversed. But the authority of the general term, on appeals from orders, is not confined to a simple reversal of affirmance, but it may make such order .as the Special term should.have made in the first instance. I shall, therefore, proceed to examine the matter on the merits, with a view of determining whether the defendant’s motion should have been granted. _ •

[The court then proceeded to examine the case on the merits, and concluded that the order of the special term should be reversed, and the inquest and subsequent proceedings had thereon should be set aside, and a new trial ordered.]

Ordered accordingly.

Barbour, J. dissented.


source: Caselaw Access Project

author: Barbour, J.

license: Public Domain

text:
    Charles Carter, plaintiff, vs. Adnrew Clarke, defendant.
    1. Proceedings supplementary to execution are a substitute for creditors’s bills, and to some extent, in the nature of those, suits in equity.
    2. The judgment creditor, in both modes of proceeding being obliged to exhaust his remedy at law, in order to entitle him to equitable relief, the ultimate decision of the court or judge is in both, res judicata upon the facts. Hence, whenever such adjudication has been made, no order for the examination of the debtor should be granted, unless the moving affidavits show that he-has subsequently acquired property; or an-alias execution has been issued and returned nulla dona; or new facts, which have come to the knowledge of the appellant.
    3. But where, before any such adjudication is made, the proceedings are voluntarily withdrawn from the consideration of the judge, and terminated, in Untóte, by the mutual consent and agreement of the parties, they constitute no bar to proceedings under a second order.
    (Before Barbour, J. at special term,
    November —, 1867.)
    Motionn to dismiss supplementary proceedings.
   Barbour, J.

The defendant moves, on the return of an order for his examination in proceedings supplementary to execution, that such proceedings be dismissed.

The order was granted upon an affidavit showing the recovery and docketing of a judgment and the return unsatisfied of an execution in 1862, and that the judgment remains unpaid.

It appears from the affidavits and papers read upon this motion that the defendant was examined in' proceedings supplementary, in 1864, on an affidavit setting forth all the foregoing facts and no others. The examination, thus taken, was subscribed and duly verified before the judge, and the proceedings were thereupon • adjourned for seven days, but for what ptirpose, does not appear. Subsequently, it was agreed by the parties that the proceedings should be discontinued, although no order to that effect seems to have been made.

Proceedings supplementary to execution were intended as a substitute for creditors’ bills, and must be regarded, to some extent, as in the nature of those suits in equity. As the judgment creditor, in both instances, must have exhausted his remedy at law, in order to entitle him to equitable relief, so, in each, the .ultimate decision of the court or judge must be considered res judicata upon the facts; and, it follows that, where such adjudication has been made, no order for the examination of the debtor-can properly be granted, unless the moving affidavit shall state that he has subsequently acquired property, or that an alias execution has been issued and returned nulla bona, or that new facts, setting them forth, have come to the knowledge of the applicant.

In this case, however, there was no such adjudication, but, on the contrary, the proceedings under the first order were voluntarily withdrawn from the consideration of the judge, and terminated in. limine, by the joint consent and agreement of the parties; and, of course, no bar exists to the proceedings under the second order.

The motion to dismiss the proceedings must be denied, with $10 costs, to abide the ultimate event of the examination.


author: By the Court, Robertson, Ch. J.

text:
    Ellen Wheeler, plaintiff and respondent, vs. William H. Falconer, executor, &c. and trustee, et al. defendants and appellants.
    1. Printing the necessary papers on which an appeal is to be heard is not for the benefit of counsel or parties, but of the court, and is not to be dispensed with, except by its order. The rule will be enforced by considering, only such papers as are printed, as being before the court.
    2. Although the Code blends equity and common law jurisdictions together, that section of it, which authorizes references, (section 271,) does not give an absolute right to have all the issues in an action referred, merely because a long account is involved.
    3. A referee has no power to adjust equities between the parties, or to order any thing but the payment of money, although his decision is to be the judgment of the court; it would therefore be unjust and impolitic that the mere necessity of taking an account should draw with it, for trial before a referee, all other matters in the action, which may infinitely more require the vigilance, discretion and experience of a court, than the mere taking of an account. Per Robertson, Ch. J.

      i. The Code, by expressly permitting, even where a long account is involved, (§ 271, suld. 1,) the referee to be cohfined to passing upon a specific question of fact involved in the issue, and allowing" an account- to be taken as a separate matter for the information of the court, (Id. suld. 2,) not only authorizes but requires, that neither party should be deprived of the benefit of a trial before the court, or a jury, as to matters not involved in the account, and embraced iu the issues.
    6. Where it did not appear in the papers presented by a plaintiff in an equity case, on applying for a reference, that the only issues involved, were those included in the taking of an account; or that taking such account would dispose of all the rights of the parties; and enough was shown by the defendant to establish that other issues were involved; Held, that granting an order of reference was not a matter of discretion with the court.
    6. A denial by the court, of an application for a reference, rse judicata, is as binding as as if an order had been entered. '
    7. The right to move at a trial term, for an order of reference, only exists when the cause is on the calendar, ready for trial, and the object is to prevent its being thus tried.
    8. To require formal orders to be entered on all occasions when an application is made to get rid of an imminent trial by a court or jury, would only unnecessarily delay the business of the court and complicate proceedings. The authority of the decision is equally binding, whether an order is entered or not.
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard November 5, 1866;
    decided December 31, 1867.
    Appeal by the defendant Falconer, from an order made at a special term, referring this action to Eobert C. Hutchings, Esq. to hear, try and determine the same.

      J. E. Parsons, for the defendant Falconer, appellant.

      C. Lawton, for the plaintiif, respondent.
   By the Court, Robertson, Ch. J.

The pleadings, except such parts of their contents as may appear in the affidavits on which the motion to refer was made and opposed, are not before us on the argument of the present appeal; no printed copies having been furnished according to the rule of this court. A document in manuscript, purporting to be a copy of the pleadings, was handed up to one of the judges, for what purpose does not appear, unless perhaps to be sent around by each judge to the .others, after his perusal. It' therefore cannot be taken notice of. Printing papers is not for the benefit of counsel or parties, but of the Court, and is not to be dispensed with, except by its order. The frequent disregard of the rule, and consequent imposition of greater labor on the court, requires that it should be enforced, by considering only such papers as are printed, as being before them.

The decision at special term of the question whether this case requires the examination of a long account, so far as it is involved as a matter of fact, may perhaps be considered as settled definitively at special term. But the affidavit of the attorney for the defendants, the Falconers, (G. Carpenter, Esq.) shows that fraud is charged in this action, in the execution of some trust deed, reserving commissions; and also fraud and collusion between one of the defendants, (Barger,) who was receiver in a‘former suit for the same cause, and the defendant William H. Falconer. The affidavit of the defendants’ counsel, (J. E. Parsons, Esq.) also alleges that the plaintiff and William Falconer, (of whom the defendant William H. Falconer is sued as executor,) accounted together regularly respecting the rents and profits of the premises in question, and settled the same, so as to' close such accounts. It does not appear from any thing before us, how or why the defendant Sophronia Falconer is made a party; between whom the account is to be taken; or why William H. Falconer is sued as executor of William Falconer, and trustee also. As it appears, by the affidavit of the defendants’ counsel, that the plaintiff and the deceased testator accounted respecting the premises in question, it would appear that one account to be taken was between the plaintiff and the estate of the deceased testator. Also that there was another with the defendant William H. Falconer, as trustee; and a third with such defendant and the defendant Barger, as receiver, acting together oollusively. There must, therefore, be three judgments in this action, not apparently connected together, or, if connected, requiring the equities arising therefrom between the defendants, if any, to be settled by the judgment of the court. It is evidently what formerly would have been an equity case. Although the Code blends equity and common law jurisdictions together, the section of it which authorizes references, (§ 271,) does not give an absolute right to have all the "issues referred, merely because a long account is involved. As a referee has no power to adjust equities between the parties, or order any thing but the payment of money, and yet his decision is to be the judgment of the court, it is very evident that it would be unjust and impolitic that the mere necessity of taking an account should drag with it, for trial before a referee, all other matters in the action, which may infinitely more require the vigilance, discretion and experience of the court, than merely taking an account. The Code, by expressly permitting, even where a long account is involved, (§ 271, subd. 1,) the referee to be confined to passing upon a specific question of fact involved in the issue, and by allowing an account to be taken, as a separate matter, for the information of the court., (id. subd. 2,) not only authorized, but required that neither party should be deprived of the benefit of a trial before a court or a jury, as to matters not involved in the account. In this case it is evident, that the charges of fraud should not be tried by a referee, and that the jurisdiction to require any 'acts to be done by either party, and the adjustment of equities, should be retained by the court. The plaintiff did not state, in her affidavit, that the only issues involved were those embraced in the taking of an account, or that taking such account would dispose of all the rights of the parties, as she ought to have done ; and enough is shown on the other side to establish that other issues are involved. It was, therefore, not a matter of discretion with the court.

The application came before the court under suspicious circumstances, after the issue .had been joined five months, without any excuse for the laches. Two previous applications had been made to different justices of this court, for a reference of the cause, while on the trial calendar, and denied, after an argument of over three hours,' on one occasion. Experiments of such a kind ought not to be encouraged, even were such decisions not binding as res judicata. The right to move, at a trial term, for an order of reference, can only exist when the cause is on the calendar ready for trial; and the object is to prevent its being then tried. To require formal orders to be entered, whenever an application is made to get rid of an imminent trial, by a court or jury, would only unnecessarily delay the business of the court, and complicate proceedings. The authority of the decision is equally binding, whether an order is entered or not.

This qourt might, perhaps, have modified the order of reference, so as to order some specific question of fact to be' inquired into, or some account taken, under subdivisions 1 and 2 of section 271 of the Code; but the papers before us furnish no data to describe such fact or account. The order must, therefore, be wholly reversed, but without costs.


author: By the Court, Monell, J.

text:
    Martin L. Bryant, adm’r, &c. plaintiff and respondent, vs. Mary H. Bryant et al. defendants and appellants.
    A notice of appeal from an order should not he allowed to he amended by inserting therein the date of another and different order from that therein men-mentioned, the effect of which would be to allow an appeal long after the time for appealing therefrom had expired, whatever may be the evidence of an intent to appeal from the order whose date ie proposed ts be substituted.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December 23, 1867;
    decided January —, 1868.
    This action was tried in October, 1864. On the 25th of that month, the justice who tried the cause made an order returnable before himself, on the 2d of November, for a motion for a new trial on his minutes. On the return of the order, the plaintiff objected to the motion on the grounds: 1. That the stenographer’s minutes were not the judge’s minutes; and 2. That there was not an order of the general term extending the trial term to November 2. The justice overruled the objections, and denied the motion for a new trial. The order denying the motion for a new trial was entered on the 12th of November. Subsequently, the plaintiff' applied to the justice for a resettlement of the order of the 12th of November, so that it might embrace the objections to Ms entertaining such motion. . The motion for a resettlement was denied, and an order to that effect entered on the 6th of January, 1865. From this last .mentioned order the plaintiff appealed, and the same was modified by the general term on the 30th of December, 1865, as was also the order of November 12, 1864, by striking out “ 12th” and inserting “second” in its place.
    On the 7th of January, 1867, the defendant served a notice of appeal “ from the order of this court, made on the 6th day of January, 1865, as modified by the general term by order made the 30th day of December, 1865.”
    On the 7th of November, 1867, the .appeal coming on for argument, and it appearing that the appeal was from ■the order of January 6, 1865, instead of the order of November 12, 1864, the case was ordered to stand over, to enable the defendants to apply to the special term for a correction of the notice of appeal.
    A motion was thereupon made at special term, founded upon an affidavit of the defendant’s attorney “ that the notice of appeal contained the words 1 January 6, 1865,’ by mistake, instead of the words and figures, ‘ November 12, 1864; ’ that the said mistake arose from deponent reading said modifying order of December 30, 1865, as though it merely modified the order of January 6, instead of the order of November 12; whereas, both said orders were modified in one and the same folio, and by supposing that the order of January 6, was the order denying the motion for a new trial.” That the defendants appealed in good faith from what said attorney believed to be the order for a new trial.

      The motion to correct the notice of appeal was denied, and .the defendants appealed to the general term.

      G. W. Cotterill, for the appellants.

      John Graham, for the respondent.
   By the Court, Monell, J.

Ho opinion seems to have been written at the special term, but it is understood that the motion was denied on the ground that the justice conceived he had no power to allow the correction to be made, inasmuch as the notice of appeal sought to be amended, correctly referred to an order in the cause which, had been entered on the day mentioned in the notice; and that therefore, to amend the notice by inserting therein the date of another and different order, would be virtually allowing an appeal from the latter order after the time of appealing therefrom had expired.

I think the decision was correct. In the case of Fry v. Bennett, in this court, (16 How. Pr. 385,) the power of the court to allow an amendment of a notice of appeal, the effect of which would be, not merely to correct a mistake, but to enlarge the time for appealing in violation of the provisions of the Code, was fully discussed and all the cases examined. And it was agreed by all the judges that the ■ amendment could not be allowed. I have no doubt the defendant’s attorney intended to appeal from the order of Hovember 12; but unfortunately, his notice recited, the date of another and different order, which had actually been entered on the day of its date. To allow an amendment now would be in effect allowing an appeal long after the time for appealing had expired, which is expressly forbidden.by the Code.

I think the order appealed from should be affirmed, with costs,


text:
    William Fowler, plaintiff and respondent, vs. Charles Huber, defendant and appellant.
    1. Where two motions, made at different times, to open a default, are not made on precisely the same state of facts, because an excuse for not making an earlier application, was given on the second motion, but not on the first, it is in the discretion of the court to open the default, on that state of facts, or leave the party to his remedy against his attorney; and the exercise of that discretion cannot be interfered with on appeal, if used in a proper mode.
    2. Although a motion cannot be renewed without leave, it is common to give notice of an application for such leave, and in the same notice to give notice of renewing such motion conditionally, in case such leave be granted. Without such leave, opening the matter- for re-discussion, the former disposition of the motion would be a bar.
    8. Where it does not appear, except from the order opening a default and setting aside a judgment, whether any second •,motion was ever made, to set aside such default, even if leave had been granted to make it, it seems the fact, that such motion was made, may be inferred from the decretal part of the order.
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard November 4, 1867;
    decided January, 1868.
    Appeal by the defendant from an order setting aside a judgment of dismissal.
    The action was for slander, commenced in January, 1866, find issue joined therein, in March, 1866. The cause. was never put on the calendar by the plaintiff, or noticed for trial by him. In September, 1866, the defendant put the cause on the calendar, paid the stenographer’s fees, and noticed it for trial. At December term, 1866, the cause was reached in its order on the calendar, and no one appearing for the plaintiff, the complaint was dismissed by the defendant’s attorneys. The defendant’s attorneys waited until January, 1867, before issuing execution, in order to give the plaintiff’s attorney an opportunity of moving to open default. Ho motion was made until the 19th of that month, when the plaintiff’s attorney obtained an order to show cause, returnable in two days. Upon the return of this order, the plaintiff’s counsel did not appear, and the. motion was dismissed. In July, 1867, an execution for the costs, against the body of the plaintiff, was issued, and on the 14th of August following an order was obtained by the plaintiff’s attorney staying proceedings, and requiring the defendant to show cause three days thereafter, (17th,) why the default should not be opened. Upon the return of that order the motion was heard upon its merits,-before Justice Barbour, and denied. On the 10th of September following, another order was obtained by the plaintiff’s attorney staying proceedings, and requiring the defendant to show cause, four days afterwards, (14th,) “why the plaintiff in this action should not have leave, upon additional affidavits, to renew the motion to open the default,” &e. Upon the return of that order, the defendant produced the motion papers upon the previous motion and the order made by Justice Barbour, and also read an additional affidavit. The motion was heard before Justice McCunn, who granted an order setting aside the judgment, and restoring the cause to the calendar on the plaintiff’s faying $10 costs.

      M. L. Townsend, for the appellant, defendant.

      J. A Wernberg, for the respondent, plaintiff.
   By the Court, Robertson, Ch. J.

It does not appear upon what grounds the first motion to open the default in this case was denied. That motion was not made until over seven months after the default, and over six months after a prior attempt to open it had failed. The only affidavits used on it were those of the plaintiff’s attorney (Fisher) and his clerk, (Wernberg,) and the only facts stated in them related to the original default, endeavoring to excuse the same, but no excuse was attempted to be given for the delay in making the motion. On the second motion, on which the order appealed from was made, two additional affidavits were made by the plaintiff himself. In the first of such affidavits he did not state when he first knew of the dismissal of his complaint; but, in the second, he denied all knowledge of the dismissal of his case, or any default taken against him, until the issuing of an execution against his person, a short time previous to the first motion, and averred that he would have made an earlier application, if he had known of the default. The two motions were not, therefore, made on exactly the same state of facts, as an excuse for not making an earlier application, was given on the second motion, and not on the first. It was in the discretion of the court to open the default on that state of facts, or leave the party to his remedy against his attorney, and the exercise of that discretion cannot be interfered with on appeal, if used in a proper mode.

But it is contended that the second order to show cause, on which the order appealed from was made, only required cause to be shown against leave being given to renew the prior motion, and, therefore, the order made upon it should have been confined to that relief. Undoubtedly it would have been more regular, first to have had an order entered granting leave. Although a motion cannot be renewed without leave, it is not uncommon to give notice of an application for such leave, and in the same notice, to give notice of renewing the motion conditionally, in case such leave be granted. Without such leave opening the matter for rediscussion, the former disposition of the motion would be a bar. In the present case,- the papers before us show such a bar, and no leave granted, except what may be inferred from the granting of the motion. The order appealed from should, therefore, at all events, be amended, by inserting a grant of such leave.

It does not appear, unless from the order appealed from, whether any second motion was ever made to set aside the default, even if leave was granted to make it. Yet the motion may have been made instanter upon leave having been granted, as is generally done, and if no objection be made, on the ground of want of notice, may be heard and disposed of. The order recites that “ this motion ” was brought on, and counsel were heard for and against, “ this motion,” without specifying what it was, unless it is to he inferred from the subsequent decretal part óf the order, which probably may be done, to sustain it.

The defendant was at considerable expense in preparing for the trial, which he lost by the misfortune or neglect of the plaintiff’s attorney, which was not allowed him. The order appealed from should, therefore, he modified, by making it an order, merely granting leave to the plaintiff to repeat his former motion, unless the plaintiff consent that it be modified, by adding the costs and expenses of the defendant at the term at which the default was taken, and the sheriff’s fees, to the costs allowed by it. No costs are given on this appeal to either party.


text:
    Jacob J. Sherman et. al. plaintiffs and appellants, vs. Thomas M. Brantley, defendant and respondent.
    In an action to recover damages for the tort of the defendant, in fraudulently misrepresenting the responsibility of another, whereby the plaintiffs were induced to sell the latter, merchandise on credit, an order of arrest may be granted, under subdivision 1, of section 179 of the Code of Proceedure, where the defendant is a non-resident.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December 21, 1867;
    decided January —, 1868.

      This is an appeal from, an order made at special term, vacating an order of arrest under which the defendant had been arrested and held to bail in $2500. The action is for damages for fraud and deceit on the part of the defendant, in representing one J. N. Land of Forsyth, Ga. the brother-in-law and a partner of the defendant, as perfectly good, and entitled to credit, whereby the plaintiffs were induced to sell him groceries, on a credit to the extent of $2560.74, of which $2260.74 remains unpaid. The plaintiffs’ affidavits, on which the order of arrest was granted, set forth a letter of the defendant, dated Forsyth, Ga. November 7th, 1866, containing the representation as to. Land’s solvency; the sale and credit induced thereby; the fact that shortly after the sale, the plaintiffs’ agent went to Georgia, and found that Land -had absconded, and was utterly worthless, and that by common fame he was known to be, and for several years had been without pecuniary responsibility, and unworthy of credit, and that the defendant himself admitted Land’s entire insolvency. The affidavit of one of the plaintiffs also alleged that the defendant was not a resident of this state, but resided at Forsyth, in the state of Georgia.
    The defendant moved to vacate the order of arrest, upon affidavits amounting to a denial of the plaintiffs’ allegations ; without showing, however, that no cause of action existed. On an order to show cause, the order of arrest was vacated, and the defendant discharged.

      Wm. Allen Butler, for the appellants, plaintiffs.

      Roger A. Prior, for the respondent, defendant.
   By the Court, Robertson, Ch. J.

The action in this case is not on contract, but for damages for the tort of the defendant in fraudulently misrepresenting the responsibility of one J. N. Land, whereby the plaintiffs were induced to sell him merchandise. The allegation in one of the affidavits on which the order of arrest was issued, that the defendant is a non-resident, is not denied. I therefore cannot perceive upon what ground the order of arrest was vacated, as it certainly was properly granted, under the first subdivision of section 179 of the Code.

The order appealed from must be reversed, without costs.


author: By the Court, McCunn, J.

text:
    A. Spiers Brown, plaintiff, vs. Frederick G. Richardson, impleaded, &c. defendant.
    1. The receipt by a plaintiff from one of two joint contractors, of the amount of a judgment in his favor against both, (including the costs of the action in which it was obtained,) pending an appeal from such judgment by the other joint contractor, and its subsequent reversal, with an order for a new trial, on such appeal, with costs to abide the event, if such receipt be set up by the party appealing, in an additional and supplemental answer put in by him by leave of the court, after such reversal, without any terms imposed as a condition for such leave, entitle such defendants to a verdict and judgment in their favor on the whole record, together with the entire costs of defending such suit, including those on the appeal.
    2. Although in such case the plaintiff might be entitled to a verdict on issues made before the filing of the additional and supplemental answer, yet the defendants are entitled to a verdict on the issues raised by such answer when its allegations are proved, and the latter verdict controls the former, so as to give the defendants judgment on the whole record.
    3. The payment of the judgment during the litigation, and the voluntary receipt of the same by the plaintiff, precluded him from prosecuting such action to recover the amount due him, or any costs; while the successful prosecution of his appeal by the defendant who appealed, entitled him to proceed with the action and bring the issues therein to trial, (including that ' made by the supplemental answer,) in order to determine his right to costs, including those of the appeal, which were to abide the event of the suit.
    (Before Robertson, Ch. J., and Monell and McCunn, JJ.)
    Heard December 21, 1867;
    decided January —, 1868.

      This was an application for judgment on a verdict by a jury in favor of the plaintiff on one issue and in favor of the defendant on another. The action was against Frederick G-. Richardson and-David Woods, for the recovery of money only, on their joint and several notes. The defendants answered separately, by separate attorneys, but setting up precisely the same defense. The litigation resulted in the recovery and docketing of a judgment in favor of the plaintiff against both defendants for a certain sum, ($2953.27,) in. 1855, (December 1st.) From this judgment the defendant Richardson alone appealed to the general term. The general term affirmed the judgment of the court below, .and in June, 1857, a judgment for costs on appeal was docketed against the defendant Richardson alone for a certain amount ($135.) The defendant Richardson then appealed from these two judgments to the Court of Appeals. Afterwards, in November, 1857, the defendant Woods, (who had not appealed,) without the knowledge of his co-defendant, paid to the plaintiff the amount of the judgment against him and Richardson, together with interest, and costs upon supplementary proceedings, and received from the plaintiff’s attorney a satisfaction piece of that judgment, but did not pay or satisfy the judgment or claim for' costs • against the defendant Richardson. In October, 1859, the Court of Appeals (both parties having continued to prosecute their appeal) reversed the judgment in favor of the plaintiff) and ordered a new trial. The remittitur was filed and duly returned in this court in November, 1859. In December, 1859, on ffiotion of the defendant Richardson, this court made an order, permitting him, unconditionally^ to make and serve a supplemental answer, setting up the payment as above. This answer was served; to which the plaintiff replied, not denying the payment, but setting up his costs on the appeal, by way of new claim. The issues so made were tried before Justise Barbour, in October, 1864, and the defendant Richardson had judgment in his favor, and taxed and claimed to recover a full bill of costs from the commencement of this action. From that judgment the plaintiff appealed to the general term of this court, and it was reversed, and a new trial granted in 1865. The case was again tried in May, 1867, before Robertson, Oh. J. on all the. issues. By his direction the plaintiff had a verdict on the issues on the original pleadings for $4417.37, and the defendant had a verdict on the issue upon the supplemental answer, in his favor, subject to the opinion of the court at general term, judgment being in the mean time suspended.

      F. J. Fithian, for the plaintiff".

      Wm. &. Anthon, for the defendant.
   By the Court, McCunn, J.

This action was brought to recover on certain contract notes, payable in merchandise for various amounts, against Richardson & Woods, who were the makers, payable to C. L. Brown, or order, at different dates, on demand. C. L. Brown indorsed the notes in this action to his brother, the plaintiff. On each of the defendants being first served, they appeared separately, and put in separate answers by separate attorneys, denying that there had ever been any demand made of the defendants at any time, for the merchandise as specified in said contracts, and setting up, that at all times, good and sufficient merchandise, as called for by said contracts, was always ready on hand, to fill and discharge said contracts, when any proper demand was made for the same-by describing the quantities required. The complaint showed that these several, contracts were made payable by the defendants jointly or severally. It appeared also,- in this case, at the trial, that this action had heretofore been tried before Judge Campbell, when a verdict was found for the plaintiff against both of the defendants, for $2923.27, on which a judgment, with costs, was entered in his favor. Richardson appealed from that judgment, first to the general term of this court, which affirmed such judgment of the special term, and then to the Court of Appeals. Woods did not appeal.

While Richardson’s appeal was still pending in the Court of Appeals, the plaintiff (by his attorney) issued an execution against Woods’ property, in New York, procured the same to be returned unsatisfied, took supplementary proceedings therein, and procured injunction orders restrained Woods’ tenants from paying him rents. Woods paid Brown the amount of his judgment, including principal, interest and costs, and took from him a satisfaction piece, discharging such judgment and action, against both of the defendants. Notwithstanding that, however, Brown continued the prosecution of the action and the appeals therein to the general term and the Court of Appeals, where the same was argued on his behalf. That court set the judgment in his favor aside and ordered a new trial, with costs to the defendants, to abide the event.

Brown’s attorney after such payment, continued to notice the case for argument, in the Court of Appeals and also in this court at special' and general terms, against Richardson. After the case was reversed in the appellate court, a'motion was made to this court, on behalf of Richardson, to be allowed to put in a supplemental answer, to show the new state of facts occurring since the first answers had been put in, and the court allowed such supplemental answer, without imposing any condition as to costs, and at the same time gave the plaintiff liberty to reply thereto. The plaintiff did reply, but did not deny the payment, or the satisfaction piece, and discharge of the action, but simply set up in addition to the old answer that, the costs on appeal in the'general term of this court, amounting to $135, had not been paid; so.that the case came on to be heard on both issues, to wit, those made by the old complaint and answer, and also the new ones raised by the supplemental answer and reply thereto.

The case being submitted, the court directed the jury to find a verdict for the plaintiff on the main issue made by the original answer, and to assess the damages at $4417.37; to which the defendant excepted. The court also directed the jury to find a verdict for the defendant on the issue made by the supplemental answer; to which the plaintiff’s counsel excepted. It sent the exceptions to be heárd in the first instance at general term, so that the sole question before this court is a question of costs—that is to say whether the $135, the amount of the costs of the general term, of this court on the -first trial should have been paid, before the plaintiff was bound to discontinue the suit. We unanimously think not.

The plaintiff’s claim for any and all costs against either of the defendants became wholly set aside, and vacated by the decisión of the Court of Appeals, reversing the judgment in the court below, in Richardson’s favor, and ordering a new trial, with all costs to abide the event of such new trial. That point ended all questions of costs to either party. With the question of Richardson’s costs for his defense in this action, neither the jury nor the court have any thing to do. Brown voluntarily received the $3340.14, from Woods, when there was no obligation upon him so to do. All the decisions of all our courts on this point in cases " of separate defenses agree; so that Brown must take the consequences of his own voluntary act.

For aught that we know, the question of these costs of appeal may have been settled by the judge who granted the request to interpose a supplemental answer; but be that as it may, that was the proper time to dispose of the question of costs.

Judgment should be ordered for the defendant Richardson, with costs.


author: Jones, J.

text:
    Clark vs. Clark.
    1, The mere fact that the referee, in an action for a divorce on the ground of adultery, was referee in a prior action between the same parties, and decided in favor of the defendant, is not of itself sufficient cause for changing the referee, on the application of the plaintiff.
    2. It must appear, from the testimony taken and proceedings had in the former case, either that the referee had a bias in favor of, or prejudice against, one of the parties, or that his decision in that case will be apt to influence his mind in determining the subsequent one.
    (Before Jones, J. at special term,
    February —, 1868.)
    Motion to change the referee in this case.
   Jones, J.

A motion is made, on behalf of the plaintiff to procure a change of the referee heretofore appointed by the court herein. The action was brought to procure a divorce on the ground of adultery. The change is asked for on the ground that the present referee was referee in a prior action between the same parties, and decided in favor of the defendant. This of itself is not sufficient to call for granting the present motion. It must appear from the testimony taken and proceedings had in the former case, either that the referee had a bias in favor of,4 or prejudice against one of the parties, or that his decision in that cáse will be apt to influence his mind in determining the subsequent one.

. For the purpose of establishing one or the other, or both of their propositions, the record in the prior case, consisting of the pleadings, order of reference, testimony taken before the referee, and his report were submitted to me. I have examined this evidence, and I think the decision of the referee was clearly correct; no bias can therefore be inferred from the fact of his decision being in favor of the defendant. Nor do I see how the decision in that case can influence his mind in this. • It is true he will hold that if the evidence in this case is precisely similar to that in the other, except as to time, place and party, it is not sufficient to support the plaintiff’s case. This, however, every other referee would in my judgment be bound to do,

If the object of this motion is to obtain a referee who, upon such testimony, would report in favor of the plaintiff^ it should not be granted.

It is true the defendant was shown to be guilty of great improprieties by the .evidence of the alleged partioeps oriminis; but that party distinctly and positively denies any criminal intercourse. It is also true that his testimony is subject to great criticism. But if he is to be wholly disbelieved, there is no evidence to support the plaintiff’s case. I see no reason for crediting him as to every thing else, but disbelieving him when he swears there was no criminal intercourse.

The application must be”denied,


text:
    George H. Alexander, plaintiff, vs. Charles B. Richardson, defendant.
    1. The power given by section 297 of the Code, to order a third person, indebted to a judgment debtor, to pay. to the judgment creditor so much of such indebtedness as will be sufficient to satisfy the judgment creditor's claim is one which should'be exercised with great caution.

      2. It should never he exercised where the amount of the indebtedness due from the third person is either disputed or uncertain; or where there is any doubt as to the pecuniary ability of the third person to make present payment. In such'a case, the proper course is to have a receiver appointed.
    (Before Jones, J. at special term,
    February —, 1868.)
    Motion for an order directing a debtor of a judgment debtor to pay to the judgment creditor so much of his indebtedness as will be sufficient to satisfy the judgment creditor’s claim.
   Jones, J.

The power given by section 297 of the Code, to order a third person indebted to a judgment debtor to pay to the judgment creditor so much of such indebtedness, as shall be sufficient to satisfy the judgment creditor’s claim, is one which should be exercised with great caution. It should never be exercised where the amount of the indebtedness due from the third person is either disputed or uncertain ; or where there is any doubt as to the pecuniary ability of the third person to make present payment.

In the present case, the same witness, (the judgment debtor,) who shows the indebtedness of the third person also shows the inability of that person to make payment.

It is true a subsequent affidavit of the judgment debtor, casts considerable suspicion upon his previous testimony as to the ability of the third person, but then that affidavit, together with his examination, renders it very uncertain whether $500, $200, or $30 be due from the third person.

Under these circumstances, I think neither the amount of the indebtedness, nor the ability of the third person to. pay, is sufficiently apparent to justify the making of the order in question. The proper course is to have a receiver appointed.

The motion must be denied, without costs.


text:
    Given vs. Webb.
    1, An averment of want of probable cause, in a complaint for malicious prosecution, is indispensable; a mere allegation that the charge was false, does not include in it an averment that there was no prohable cause for making the 'charge, nor is an averment of malice an averment of want of probable cause, since, although malice be proved, that fact does not prove a want of probable cause.
    (Before Jones, J. at special term,
    February —, 1868.)
    Demurrer to complaint.
   Jones, J.

It was admitted on the argument that all the causes of action contained in the complaint are for malicious prosecution. One of the grounds of demurrer is that the complaint does not state facts sufficient to constitute a cause of action, in that it omits to aver that the prosecutions were without probable cause. The plaintiff’s counsel claims that it is unnecessary to insert this averment in the complaint.

I understand the law to be well settled that in order to maintain an action for malicious prosecution the plaintiff must, in addition to other matters, establish a want of probable cause. (Vanderbilt v. Mathis, 5 Duer, 304.) And it is equally well settled that every fact which the plaintiff must prove, to enable him to maintain his action, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated in the complaint.

It follows from these principles that the averment of want of probable cause is a necessary allegation to be contained in a complaint for malicious prosecution.

The plaintiff’s counsel cites in support of his proposition Purdy v. Carpenter, (6 How. Pr. 361;) and 1 Abbott’s Forms and Pleadings, (489.)

The case of Purdy v. Carpenter was an action for libel, to sustain which action proof of want of probable cause is not necessary. On page 489, of Abbott’s Forms and Pleadings, there is a form of complaint for some cause of action which does not contain an averment of want of probable cause; but on page 486, there is one form which does contain this averment. If the form on page 489 was intended as a complaint in an action for malicious prosecution, then, according to the principles above laid down, it is radically defective in not containing the averment in question.

The plaintiff’s counsel, however, claims that the expressions “ maliciously intending to injure the plaintiff, caused to be made a false and malicious affidavit,” include an averment of want of probable cause. It is well established ■ that, although malice be well and sufficiently proven, yet that does not establish want of probable cause. (Foshay v. Ferguson, 2 Denio, 617. Morris v. Dupont, 3 Wash. C. C. R. 32.) Consequently, an averment of malice is not an' averment of want of propable cause, since, although malice be proved, yet that fact does not prove a want of probable cause.

Ebr does an allegation that the charge was false, include an averment that there was no probable cause for making the charge. This is apparent from the definition given of the term “ probable cause.” This definition is, “ that it is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant á cautious man in the belief that a person accused is guilty of the offense with which he is charged.” (See above cases.) This very definition is sufficient to show that although the charge may, in fact, be false, yet if the plaintiff is unable to show a want of probable cause, as that term probable cause is above defined, he cannot recover.

It, therefore, follows that an averment of falsity of the charge does not include in it an averment of want of probable cause.

There were other questions raised on the argument of the demurrer, which it is not now necessary to consider.

Judgment for the defendants on the demurrer, with costs, with leave to the plaintiff to amend on payment of costs within twenty days. .


text:
    Secor et al. plaintiffs, vs. Weed et al. defendants.
    1. On a motion to vacate an injunction order, it is the duty of the court to decide whether the plaintiff, on the motion papers, is entitled to such an order or not, and in cases of doubt, to give the benefit of that doubt to the defendant, and hold that the plaintiff is not entitled to it. The effect of that decision can be no ground for sustaining the injunction order,
    2. In all cases of doubt, it is the duty of the court to‘vacate an injunction order.
    3. If by any evasiveness in the defendant’s answer and affidavits, or by admissions therein, either implied or express, sufficient appears to satisfy the court that the plaintiff is entitled to the injunction order, notwithstanding the defendant by his answer and affidavits in words, seemingly, denies the equity of the complaint, and the allegations therein, the injunction may be retained.
    4. But the court must take the trouble and responsibility of ascertaining and deciding, upon all the papers, whether the plaintiff has or has not established to its satisfaction, that he is entitled to retain the injunction.
    5. When the plaintiff, in his complaint, alleges a fact on the existence of which his right to an injunction depends, and the defendant in his answer denies it, explicitly, without any evasiveness or admission of any thing therein, to cast suspicion on the good faith of the denial, then, on a motion made upon the complaint and answer, (without affidavits on either side,) the court is not at liberty to say that the plaintiff has established a right to his injunction.
    6. If, in the opinion of the judge hearing a motion to dissolve an injunction, the plaintiff has otherwise no right to an injunction, the fact that a trial will soon be had will not give him such right.
    (Before Jones, J. at special term,
    February —, 1868.)
   Jones, J.

In this case, the plaintiffs claim to have, by virtue of an agreement between them and the defendants, a certain interest in whatever rights the defendants are entitled to, under a certain letter, of which the following is a copy;

Gentlemen : Tour letter of the 30th September, in relation to lines of telegraphic communication proposed to be established by you, has been received. In view of the advantage to the service of a telegraphic communication between the military posts on the proposed route of your line, instructions will be given by this department to afford protection in the line to such extent as may be within the power of the commandants of posts, and also to furnish such subsistence, transportation and facilities as may be reasonably required, without prejudice to the service. Tour obedient servant,
Edwin M. Stanton, Secretary of War.
Messrs. Thurlow Weed, William E. Kelly, R. Gray, George Conant and James L. Pond.”

The plaintiffs’ rights of action (if they have any at all) depend on their establishing this claim. • The defendants deny that the plaintiffs have any interest whatever in any right conferred by the above letter on them. This creates the main issue in the case. The affirmative of this issue rests on the plaintiffs, and they must establish it by a preponderance of proof.

After examining the proofs used on this motion, I am led to the conclusion that there is no preponderance of proof in favor of the plaintiffs. The injunction, therefore, must be dissolved, unless all or one of the following points, made by the defendants, are sufficient to retain it. Those points are :

1st. That,: although the defendant in his answer to the complaint, fully and explicitly denies all the facts contained in the complaint, yet, on a motion made on such complaint and answer, solely, the injunction will be retained, if its dissolution will cause irreparable injury to the plaintiff. Dubois v. Budlong (15 Abb. 445) is cited to support this proposition.

2d. That; although the defendant, in his answer to the complaint, fully and explicitly denies all the facts contained in the complaint, yet, on a motion made on such complaint and answer, solely, the injunction will be retained, unless the defendant shows that he will suffer some pecuniary loss or damage by such retention. Carpenter v. Danforth (19 Abb. 225) is cited for this proposition.

3d.' That when the trial of the action is expected to take place shortly after the argument of the motion to dissolve the injunction, the court- should always retain the injunction until after the trial, bio authority is cited for this.

4th. That when all these matters conjoin, the motion to dissolve should be denied.

I cannot yield my assent to these propositions. If the first two, or either of them, be law, the result would be that, in by far the greatest number of motions to dissolve injunctions, the court would have nothing to do with any question as to the truth of the plaintiffs’ alleged facts, or as to whether those facts showed any liability of the defendants, but would only have to inquire, either whether, in the possible event of the plaintiff’s success on a trial, he would be left without an adequate remedy, by reason of the dissolution of the injunction, or, whether the continuance of the injunction can do any harm to the defendant. It would follow that, no matter to what extent the plaintifi’s allegations were contradicted by the defendant ;■ no matter how insufficient, in the opinion of the judge hearing the motion, such facts might bé to impose on the defendant any liability, yet the injunction could not be dissolved, if either, it produced no immediate pecuniary loss to the defendant, or if the dissolution would have the effect of leaving the plaintiff without an adequate remedy, in the event of his possible success at a trial.

These results are so opposed to what I have always considered the principles of equity, relative to the granting and retaining of injunctions, that I must withhold my assent from the propositions which give birth to them, until some higher tribunal, in' a well considered opinion, shall affirm them.

It may be that, in the present improved state of the law, it will, in time, become an established principle, that the matters contained in these two propositions, as well as that contained in the third proposition, may be taken into consideration in sustaining an injunction, where either the truth of the plaintiff’s allegations of fact, or his right of action on those allegations, is doubtful. Even this would • be a departure from the former equity principles, as I understand, and as they are laid down in Fredericks v. Mayer, (1 Bosw. 232.)

■ It is unnecessary, in this case, to determine whether such departure has been well established, or whether it would not be advisable, in the present state of the law and society, to establish such departure; for, in this case, I am clearly of opinion that the plaintiffs have not established the facts on which their right of action depends.

Before passing to the third proposition, a few words on the cases of Dubois v. Budlong, and Carpenter v. Danforth.

The first of these cases was decided at a general term of this court. The learned judge, who wrote the opinion, says: “ It was the rule in the court of chancery, in common cases, to dissolve an injunction upon the coming in of the answer of the defendants, denying the whole merits and equity of the bill. The exception to this rule existed in such cases as demanded immediate relief, to prevent irreparable injury, &c. and, in those instances, the granting or refusal rested in the sound discretion of the court.” There is no authority cited, no reasoning, by which the judge was led to this conclusion, but, simply, his statement of what he understood to be the rule. It does not profess to be a decision of any point raised and argued. Indeed, the learned judge had, just previous to this remark, decided the case, on the ground that the judge below, in denying the motion for an injunction, had found, as matter of fact, that all the allegations constituting the plaintiffs’ complaint had been fully met and controverted by the defendants. And the general term would not reverse that decision. This can hardly be said to be a decision in favor of the proposition that, when the plaintiff’s allegations are fully met and controverted, an injunction will be retained, because immediate relief is demanded, to prevent irreparable injury.

The case of Carpenter v. Danforth, was decided by the Supreme Court, special term, in the first district. In that case the learned judge, after holding, on the complaint, answer and affidavits, that the defendant was bound to make certain disclosures to the plaintiff, says: “ Whether he did make such disclosures or not, can be better and more safely determined after the trial than on this motion.” And again, he says: “ Though the answer may be said to answer the equity of the complaint, in words, yet I do not think it follows, as a matter of course, that a continuance of the injunction should be denied.” And again: “ I do -not think that I should be justified in dissolving the injunction before trial, particularly as I do not see that the retention of the injunction can be of any pecuniary damage to the • defendants, while, if the plaintiff finally succeeds, he will be entitled to a.re-transfer of the particular stock.”

It is certainly an easy way to avoid the trouble of deciding on conflicting affidavits and the, responsibility of so deciding, to refer such decision to the trial of the case. But, it seems to me, that to admit such a principle is, in effect, to declare that if the plaintiff’s, allegations are disputed, the injunction must be continued, or at least to throw on the defendant the burthen of showing, by vastly preponderating proof, that the plaintiff’s allegations are untrue, instead of requiring the plaintiff, who seeks to sustain the extraordinary and severe remedy.which he has. invoked^ to support his allegations by preponderating proof.

I do not, doubt that if, by any evasiveness, in the defend-. ant’s answer and affidavits, or by admissions therein, either implied or express, sufficient appears to satisfy the court that the plaintiff is entitled to the injunction, then, notwithstanding the defendant, by his answer and affidavits, seemingly, "in. words, denies the. equity of the complaint, and the allegations therein, the injunction may be retained; but I do mean to say that the court must take the trouble and responsibility of ascertaining and deciding, upon all the papers, whether the. plaintiff has or has not established to its satisfaction that he is entitled to retain the injunction. And I mean, further, to say that when the plaintiff in his complaint alleges a fact, on the truth of which his right, to an injunction depends, and the defendant in his answer denies the fact, explicitly, there being no evasiveness, or admission in the answer, and nothing in the answer to cast suspicion on the good faith of the,denial, then on a motion made on the complaint and .answer, without affidavits on either side, the court is. npt.at liberty to Bay that, the plaintiff has established a. right to his injunction; since that would be to hold that an allegation made by the plaintiff is substantiated by the mere oath of the plaintiff, although it is fully met and denied by the . defendant, nothing appearing to give any preponderance of credit to the plaintiff over the defendant.

I have said before, that the court must take the trouble and responsibility of deciding on all the motion papers, whether the plaintiff has or has not a right to the injunction he asks for, the court cannot retain the injunction on the ground that it is doubtful whether the plaintiff has a right to it. The effect of that would be this. The judge would say, I do not know whether you ought to have this injunction, and because I am in this doubt, I will grant you this extraordinary and severe remedy. Thus the plaintiff, instead of establishing a right to the injunction, would only have to raise a doubt as to whether he was entitled to it or not.

I have suggested, above, that it may become an established principle to sustain an injunction in case of doubt, where the effect of its dissolution would be to deprive the plaintiff of. an adequate remedy in the event of ultimate success, or when the effect of its continuance would not be to injure the defendant. But as such principle has not as yet been established, and as it is, in my view, dissonant with the established equity principles relating to injunctions, I must hold, until flatly overruled, that in cases of doubt, it is the duty of the court to dissolve the injunction.

Having, then, come to the conclusion that it is the duty of the court to decide, on motion, whether the plaintiff, on the motion papers, is entitled to an injuction or not, and in cases of doubt, to give the benefit of that doubt to the defendant, and decide that the plaintiff is not entitled to the injunction, it follows that the effect of such decision can be no ground for retaining the injunction. The court cannot say, I decide you have no right to this injunction, hut as it does no harm to the defendant, you can retain it; or, although I decide you have no right to this injunction, yet as another tribunal may differ from me, in which event, you, although ultimately succeeding, may be without adequate remedy, therefore you may retain the injunction. The effect of this would be for a judge to say, 'I decide you have no right to this injunction, yet I decide that you have a right to it until, on some future occasion either I or some other judge decide either that you have not or have a right to it.

The third suggestion, which is that by reason of the ■ proximity of the trial to the argument of the motion, the injunction should be retained, amounts to nothing, unless it amounts to this, that in all cases of such propinquity the motion should not be heard; for if heard and decided,

I fail to see what bearing such propinquity can have upon the plaintiff’s right to an injunction.

■ If, in the opinion of the judge hearing the motion, the plaintiff has otherwise no right to an injunction, the fact that a trial will soon, be had will not. give him such right.

Motion to dissolve the injunction granted, with $10 costs.


author: Robertson, Ch. J.

text:
    David Elston, plaintiff, vs. Andrew Schilling et al. defendants.
    1. A judgment by default, at a general term, dismissing an appeal for not serving copies of the casé in due time, will be opened, where the appellant shows that the action, and all the proceedings therein, were wholly neglected ’ by his attorney and counsel, in consequence of his being rendered by his habits incompetent, to take charge of them. The language of Mullin, J. in Sharp v. The Mayor, $c. of New York, (31 Barb. 585,) is applicable to such a case.

      1. The court, at special term, is the proper tribunal to which to apply for relief, under such circumstances.
    (Before Robertson, Ch. J. at special term,
    March —, 1868.)
    Motion to open a judgment taken by default.

      S. T. Birdsdle, for motion and plaintiff.

      O. Q. Egan, opposed.
   Robertson, Ch. J.

This is a motion for leave to open a judgment, taken by default at the general term, affirming one at special term. The proceedings, which were on appeal, appear to have, been regularly taken, but the appeal was dismissed for not serving proper cases in due time. The ground of moving to vacate such judgment and to be let in to be heard on the appeal, is, that the whole proceedings and action were utterly neglected by the attorney and counsel for the plaintiff, who was rendered incompetent by his habits from taking charge of them. I think the language of Justice Mullin in Sharp v. The Mayor of New York, (31 Barb. 585,) is applicable to such a case. It would certainly work great hardship if the representative of a party, by courtesy and fiction of law an officer of the court, could inflict on a client unbounded injury, and there was no redress but by the doubtful remedy of an action for negligence.

I do not regard the decision on a former motion against letting the plaintiff in to be heard, as res judicata, as the court had not then before it the incapacity of the plaintiff’s attorney and counsel to take charge of the action. Surely the court would have interfered if he had become imbecile or insane, and it should not the less interfere when his habits rendered him partially so. There is no doubt all the steps taken in the cause, as well as the indulgences granted by the defendants’ counsel would have raised a barrier to relief, if the plaintiff had been properly represented. As it was, he was entirely helpless.

As to the suggestion of the absence of exceptions to the referee’s report upon the amount of damages from the injunction, that cannot interfere with the right of the plaintiff to be properly represented and heard. Indeed, I do not understand how judgment in the action was entered upon such report. The court at general term can dispose of that, as well as any other question, on appeal, on hearing the argument. .

This court at special term is the proper tribunal to which to apply for relief. The motion must be granted, upon the terms -of the plaintiff' paying the costs of obtaining the judgment at general term, also those of the previous motion to be let in, and of the appeal from the order denying such motion, and $10 costs of the present motion; otherwise it must be denied, with $7 costs.


text:
    Abraham Prince et al. plaintiffs, vs. Antonio Cujas and John DePol, defendants.
    1. The 375th section of the Code applies only to courts of record, and does not supersede the remedy by aetim, after a judgment has been recovered against joint contractors, upon a service of summons on one only.
    2. It is more than doubtful, whether the first judgment is one in personam as regards the party not served, so as to require an application for leave to sue under section 71 of the Code. If it were, the omission to set up such leave is not cause for demurrer, the remedy being by motion to set aside the complaint or summons.
    (Before Robertson, Ch. J. at special term,
    March —, 1868.)
    Demurrer to complaint.
   Robertson, Ch. J.

This is an action against joint contractors, judgment having been recovered in a prior action .in the Marine Court of this city against both, upon a service of summons upon one only. The causes of demurrer, assigned, are a want of jurisdiction, another action pending, an insufficiency of facts to constitute a cause of action. It does not appear there is any other action pending; the former one being ended by judgment. The 375th section of the Code, applies only to courts of record, (14 Abb. Pr. 421;) and even if the Marine Court came within its purview, it does not supersede the remedy by action. (Dean v. Eldridge, 29 How. U. S. 222.) It is more than doubtful whether the first judgment is one in personam as regards the party not served, so as to require an application for leave to sue, under section 71 of the Code. (Id. 221.) If it were, the omission to set up such leave is not cause for demurrer, the "remedy being by motion to set aside the complaint or summons. (Finch v. Carpenter, 5 Abb. 225.) The addition of the defendantCujas, is not made ground of demurrer, -even if tenable. (Id. 224.)

The demurrer must be overruled, and judgment given for the plaintiff) with costs, with leave, &e.