author: Saitofokd, J.

text:
    Cramer v. —.
    The court will not try the validity of an insolvent's discharge on affidavits.
    But where the creditor has issued and levied an execution* and on a motion to set it aside, ho presents facts showing presumptively, that the discharge may be success» fully assailed, the levy will be retained, and an issue directed to be tried in the original suit; to test its validity.
    in lieu of retaining the levy, the defendant may give security, or bring the amount of the execution and sheriiPs lees into court.
    Form of the order in such cases, and of the issues directed to be tried.
    Jan. 15;
    Jan. 18, 1851.
    Motion to set aside an execution.
    The suit was commenced on the 22d of June, 1847, on anote for $800, at three months, made by the defendant, payable to and indorsed by one Allerton, dated August 7, 1846. The declaration, with a copy of the note, was served on the defendant personally. He appeared by an attorney, and filed a plea setting up that the note was usurious in the hands of the plaintiff, with an affidavit of merits. An inquest was taken and judgment perfected December 19, 1848. An execution was returned unsatisfied in February following. An alias execution was issued in November, 1850, and levied on personal property of the defendant.
    The motion was founded upon a discharge of the defendant from bis debts, on the petition of himself and two thirds of his creditors, granted by Judge Ingraham of the New York Common Pleas, dated .January 80, 1849.
    In answer to the discharge, it was shown that the plaintiff for over thirty years past has resided in Saratoga County, more than one hundred and fifty miles from the city of New York, where the creditors were ordered by the judge to show cause against the discharge ; that the order to show cause and its publication were for six weeks only, instead of ten weeks as required by law in such a case; that the plaintiff was not mentioned in the petition or affidavits presented to the judge, as a creditor or otherwise; that neither lie nor his attorney received any notice or had any information of the proceeding; that the assignment of the insolvent was attested by only one witness, and was not certified by the county clerk; and various other objections and defects in the proceedings were insisted upon. On the grounds thus taken, the plaintiff claimed that the discharge was utterly void, and should be disregarded.
    The defendant showed that the note on which the judgment was recovered, was indorsed by Allerton to E. Curtis ; and in his schedule of creditors he described Curtis as a creditor for $1000, on a note made by Allerton and indorsed by the defendant. It did not appear that Curtis ever had any note against the defendant, other than the one sued by the plaintiff, which was transferred by Curtis to him in the spring of 1847.

      W. 0. Russell, for the defendant,
    insisted that the court would not try the question of the validity of the discharge on affidavits, but would require the plaintiff to contest it by a suit on the judgment. He cited 5 Hill, 245 ; 9 Wend. 431; 1 Cowen, 50, 228; 20 John. 21; 9 ibid. 259; 1 Caines, 249.

      8. Sanxay and T G. Taleott, for the plaintiff,
    cited 2 Rev. Stat. 16, 23, § 1, 5, 8 to 12, 29, 35; 1 Rev. Laws, 464, § 8 ; Laws of 1847, ch. 366, page 470 ; 3 Barb. Sup. C. R. 185; 1 Wend. 90, 156 ; 15 John. 183.
   Saitofokd, J.

(after advising with the Chief Justice,) — said, the court will not try the validity of an insolvent’s discharge upon affidavits. But it does not follow that the execution must necessarily he set aside and the plaintiff subjected to the alleged probability of thereby losing his debt, although he shall succeed in overturning the discharge, and which is now secured by the levy. The proper rule to be adopted, is to retain the levy and direct a reference or an issue to test the validity of the discharge, whenever it is made presumptively to appear that the discharge may be successfully assailed. This conforms to the practice long since established, in respect of judgments by confession, which defendants seek to set aside on the ground of fraud, imposition, usury, or the like.

In this case, without reference to numerous other points made against the discharge, there are two which furnish a strong presumption that it cannot be maintained. One is the defect in the publication of the notice of the order to show cause ; the other is the omission of the plaintiff in the insolvent’s account of his creditors. The plaintiff is certainly entitled, as the case now appears, to retain the security he has obtained, until he can have the opportunity of bringing these objections to the test of a regular judicial examination.

An order must be entered to the following effect, viz. The motion will be denied, on the plaintiff’s serving issues to try the validity of the discharge, within ten days. If served, the defendant may bring into court the amount of the execution and sheriff’s fees ; or he may give a bond for the same, with sureties, to be approved by the clerk on notice; and on his doing either, the levy is to be set aside. The issues served, are to be tried in this suit, by the court and a jury, (unless a jury trial be waived,) and they are to present two questions: 1. Had the officer who granted the discharge to the defendant, jurisdiction or authority for that purpose when it was granted % 2. Was the defendant guilty of any fraud in the matter, contrary to the true intent of the article of the revised statutes relative to the discharge of debtors from their debts on the application of such debtors and their creditors, or of any act or omission specified in the thirty-fifth section of that article. The plaintiff is to serve with such issues, a specification of the grounds relied upon in support of each; the defendant may propose amendments to the same ; and if the parties disagree, the issues and specifications are to be settled by one of the justices of the court.

The costs of this motion, of the issues, and the trial and subsequent proceedings thereon, to be disposed of by the court hereafter, on motion of either party.


source: Caselaw Access Project

author: Oakley, On. J.

license: Public Domain

text:
    St. Amant v. De Beixcedon.
    On a motion to set aside a warrant of attachment, issued as a provisional remedy under the code, the plaintiff may read affidavits supplementary to those on which it issued.
    An attachment will not be granted, unless a prima facie case is established by affidavits, upon positive knowledge ; or when, from peculiar circumstances, such cannot be obtained, those circumstances must be stated with all the grounds of suspicion, so as to satisfy the judge of the existence of the facts relied upon, and that the plaintiff has furnished the best evidence in his power to establish them.
    (Before Oakley, Ck. J., and Sandford and Paine, J.J.)
    Jan. 11;
    Jan. 18, 1851.
    Appeal from an order at chambers, denying a motion to discharge an attachment issued in the above suit, under chapter four of title seven of the code. On the argument of the motion, the plaintiff was permitted to read an affidavit in addition to that on which the warrant was granted.

      S. B. II. Judaic for the defendant.

      W. Hutchins, for the plaintiff.
   Bx the OoiTitT.

Oakley, On. J.

There are two questions which arise upon this appeal. In the first place, can supplemental affidavits be introduced in support of the original affidavits, upon which a warrant of attachment is issued, where a motion is made to set the warrant aside ? and secondly, is there sufficient shown, upon the affidavit in this case, to justify the warrant ?

As to the first point, we entertain no doubt as to the right to introduce supplemental affidavits. The cases under the code are different from those which have arisen under the revised statutes, where the jurisdiction of the court depended upon the facts set up in the affidavits on which the warrant was granted. The supreme court, in this district, have decided, that the introduction of supplementary affidavits, in support of the original application, is proper, and in that opinion we concur. (Morgan v. Avery, 2 Code Reporter, 92, 121.)

As to the other point, we think, the two affidavits taken together are sufficient to sustain the warrant of attachment. We will avail ourselves of this occasion to state the views by which we shall be governed in granting these warrants.

We consider it proper in a remedy of so grave a character as the attachment, in effect, tying up of the entire property of a party pending a suit, that the affidavit upon which the proceeding is authorized, should be explicit, and made in general, upon positive knowledge of the deponents, so far as to establish a prima facie case. In general, there is no difficulty in obtaining the affidavits of the persons who give the information, on. which the plaintiff desires to proceed ; and when such affidavits cannot be obtained from the peculiar circumstances of the case, those circumstances must be stated, with all the grounds of suspicion, so as to satisfy the judge that the facts exist on which the attachment is sought, and that the plaintiff has produced the best evidence in his power to establish them.

All the justices of this court concur in the rule which we have now declared.

Appeal dismissed.


author: Oakley. Ch. J.

text:
    Lewis v. Truesdell.
    An application to vacate an order of arrest, pursuant to section two hundred and four of the code, must be made before the bail has become perfect. It must be made before the bail have justified, if excepted to ; and if no exception be taken, then before the time for excepting has expired.
    Jan. 25, 1851.
    MotioN to set aside an order of arrest. The defendant was arrested under the order, and was required to give bail. He accordingly put in bail to whom no exception was taken by the plaintiff. In March last, judgment was recovered against the defendant in the suit, an execution was issued and returned unsatisfied, and supplementary proceedings thereon ensued against the principal. An action was subsequently commenced against his bail, whereupon this motion was made.
    A. Anson, for the defendant.

      C. Shaffer, for the plaintiff.
   Oakley. Ch. J.

(With the concurrence of Sandford and Paine, Justices.) — This motion is made with a view to discharge the bail from his responsibility, and it is bottomed on the language of section two hundred and four of the code of procedure, which provides that a defendant arrested may at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail. The defendant’s idea is, that as the bail never justified in this case, the matter is still open for him to move to vacate the order under which he was arrested. The plain meaning of the code is, that the application must be made before the bail have justified if excepted to; and if not excepted to, before the time for taking an exception has elapsed, and the bail has thereby become perfect. The defendant, by submitting to put in and perfect bail, accedes to the regularity of his arrest and the sufficiency of the grounds for it. The object of the provision in the code, is to give him time to move before bail shall have been perfected.

Motion denied.


author: SaNDford, J,

text:
    Roberts v. Randel.
    The remedy given by the code for the xt elaim and delivery of personal property,” cannot be maintained where the defendant has not in fact or in law, the possession or control of the property claimed.
    An order for the arrest of the defendant under the third subdivision of section one hundred and seventy-nine of the code, cannot be made on the sheriffs return that the property has been removed or disposed of, if it appear that it was so removed or disposed of before the suit was commenced, unless it also appear that such disposal was made to defeat the action or expected action for the property.
    The arrest given by the first subdivision of section one hundred and seventy-nine of the code, is in suits for damages claimed for the wrongful taking or detaining property. The arrest provided in the third subdivision, is in suits for the recovery . of the identical property itself, and is granted where the party has attempted to defeat the process of the court for its recovery by putting it out of his hands to prevent its seizure by the sheriff.
    The “ claim and delivery of personal property” under the code, is a substitute for the action of replevin as it was regulated by the revised statutes.
    That action was a possessory action for the recovery of specific property in the defendant’s possession or control, with damages for its detention.
    If the property were removed or concealed so that the sheriff could not find It, the revised statutes added the remedy of arrest and bail. But it was only a removal or concealment in fraud of the replevin which warranted the arrest.
    Before the revised statutes, the action of replevin was purely possessory, and could not be maintained against a party who had entirely digested himself of the goods claimed, except where a distrainor for rent proceeded fraudulently or in violation of the statute regulating distresses.
    Under the revised statutes, the action of replevin could not be maintained against a party who had neither the possession nor the control of the chattels claimed, and had not parted with them in fraud of the action. The plaintiff’s remedy was in trespass or trover.
    The assumption of the court in Cary v. Uotaling, and Olmsted v. Uotaling, ! Hill 311, 317, that replevin was a concurrent remedy in all cases with trespass de bonis asportatis, was not well founded.
    (Before Oakley, Ch. J., and Sandford and Paine, J.J.)
    Jan. 11;
    Jan. 25, 1851.

      This was an appeal from an order made at chambers, discharging an order for the arrest of the defendant, made under the third subdivisión of section 179 of the code of procedure. The defendant had been arrested under that order, and imprisoned for default, of bail. The action was brought, in form, for the recovery of the possession of personal property. The plaintiff, claiming a delivery of the property, placed in the hands of the sheriff, an affidavit and a requisition for its delivery, pursuant to §§ 207 and 208 of the code, with the proper security.
    The sheriff certified, that the property had been concealed, removed, or disposed of, so that he could not find or take it. Thereupon the justice at chambers made the order for the defendant’s arrest. The plaintiff’s affidavits, for the delivery and the arrest, showed, that the action was brought fur the conversion of a bond of the state of Texas, which was delivered by the plaintiff to the defendant, as a broker, to sell for not less than forty per cent, on the amount of principal and interest; and which the defendant, some months prior to the suit, sold for forty per cent, on the amount of the principal only. That the plaintiff, thereupon, demanded of him the bond itself, and also the amount of it, at the price limited for its sale; neither of which demands ivas complied with by the defendant. The affidavits further alleged, that the bond was obtained by the defendant, with the fraudulent intent to convert it to his own use. After his arrest, the defendant offered to give to the sheriff' the bail for bis appearance; but the sheriff required the undertaking prescribed in § 211 of the code.

      E. Fitch Smith, for the plaintiff.

      I). Gould, for the defendant,
   'By the Cottet.

SaNDford, J,

The first question arising on this appeal is, whether the plaintiff can bring an action “ to recover the possession of personal property,” in a case like this. By his own showing, the defendant parted with the property long before the suit was commenced ; and, whatever it may be called, the suit is really one to recover damages for the conver-sioii of the property. We have examined the subject with much care, and are clearly of the opinion, that the plaintiff is not entitled to the remedy which he claimed, and which was granted to him by the order at chambers.

That order is one of the “ provisional remedies,” established by the seventh title of the code. The claim and delivery of personal property is itself one of those provisional remedies, and the order in question is consequent upon the failure of that remedy. Arrest of the party is provided by the title cited, in five classes of cases. The first embraces, among others, actions for the recovery of damages, for wrongfully taking, detaining, or converting property. Tins, beyond dispute, applies to the plaintiff’s cause of action here. The third class is thus expressed: “ In an action to recover the possession of personal property, unjustly detained, where the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff.” (Code, § 179, sub. 1, 3.)

The bail required, in the first class, is for appearance to answer the process of the court; that required in the third class, is virtually for the payment of the judgment which may be recovered in the action. It is evident, that, in all cases arising under the third subdivision, the plaintiff may claim an arrest and bail under the first, which gives the arrest in an action for wrongfully detaining property. But to obtain the arrest and security provided by the third subdivision, besides the unjust detention, it must be shown, that the property sought to be recovered, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. In this clame, we find the real distinction between the two kinds of arrest. The first is given in suits for damages, claimed for the wrongful taking or detaining of property. The second is given in suits where tlie party seeks the recovery of the identical pmperfcy itself. Such a suit, in our judgment, can be brought only when the property is in the possession, or under the control, of the person who is made defendant. To bring an action against John Doe, to recover the possession of goods, which the plaintiff knows lie has long since sold and delivered to Richard Roe, is idle Ind unmeaning.

Bhs is made more manifest by tbe clause already stated, on wliieli the whole thing turns. The goods irms-t have been concealed, Ac., so that the sheriff cannot take them. The words are, “ has been ” removed, &c. Now, although a sale of the property by the defendant, months before the suit, will have the effect to prevent the sheriff from taking the goods from him ; we think it quite apparent, that such was not the disposal intended by this section. If it were, there would have been no occasion to add the words, “ so that it cannot be found or taken by the sheriff,” The provision, without those words, would have been complete to reach every case where the defendant had parted with the property illegally taken or detained. The words just quoted, were added to qualify the provision, and limit it to cases where the defendant had not only disposed of the property, but had disposed of it, so as, and in order, to prevent the sheriff from executing the process for its delivery : which could only be after the commencement, of the suit, or after the sheriff, by the receipt of the process, was entitled to make such delivery; or when made with a view to defeat expected process, which would be a disposal in fraud of the law.

To test this conclusion, let us examine the chapter entitled, Claim and delivery of personal property,” out of which the -arrest in question arises. Seetion 206 enacts, that in an action To recover the possession of personal property,” the plaintiff may, when lie issues the summons, or at any time before answer, “claim the immediate delivery of such property,” as provided in that chapter. Tims, the action is to be one, not for damages for illegally taking, detaining, or converting property, nor for the value of such property; but it is for the recovery of the possession of the property itself. To this end, the remedy claimed is the delivery of the very property, which the sheriff cannot do, in a suit against one who has not the thing to be delivered.

This distinction, between actions to recover damages, for the wrongful taking or detaining goods, and actions for the recovery of specific personal property, is maintained in the judgment to be rendered, as well as in process — -(Code, § 246, subd. 2.) And if under section 206, an action to recover the possession of personal property, may be brought against one who has sold and delivered it, and has neither the possession nor the control of it.; why may not an action to recover the possession of real property, or to recover real property, be brought against any person who once possessed or claimed it, though he has sold his right and parted with bis possession to others ?

We cannot see how an action can be said to be brought to recover the possession of a specific chattel, when it is brought against a party who avowedly has not the chattel, and from whom no power of the court can procure it.

To return to the code. The affidavit to be made by the plaintiff must state, among other things, “ That the property is wrongfully detained by the defendant,” and the alleged cause of the detention thereof. — (§ 207.) This assumes that, the property is in the possession or control of the defendant. It is a detention, by him, existing at the time the affidavit is made; else how can the party make oath that it is wrongfully detained by the defendant t Then in executing the process, the sheriff of the county where the property is supposed to be, is required to take it from the defendant and deliver it to the plaintiff. — (§ 208; and see § 211, 214.) Without pursuing minutely, the details of the chapter, they all proceed upon the basis of an action against specific property, and are addressed to giving it effect against such property, in the possession of the defendant. The only provision against the defendant’s person, is that already commented upon, and is given when through Ills act the sheriff is prevented from executing the process issued to take the property out of Ms possession.

Unless we are right in our interpretation of these provisions, we must hold that the legislature lias provided two distinct provisional remedies, in all cases where under the former system, trespass or trover could be maintained ; by one of which the defendant may be held to give the special bail of the old system, and by the other may be required to give security to pay the judgment that may be recovered in the action; and the latter remedy being so much more efficacious than the other, it will of course supersede it altogether. It is a remedy as insisted on in this action, which in all cases of the alleged wrongful taking or detaining of personal property, will subject defendants who have disposed of the property however innocently, to imprisonment from the commencement of the suit, until its termination, unless they can give security to pay the judgment sought; and if a judgment be recovered, until they pay it, or are discharged under the insolvent laws.

We cannot be induced to believe, that the legislature intended to make such a harsh and violent change in the law; one so inconsistent with the other provisions for arrest contained in the same section, and so totally at variance with the whole tendency of our legislation for the last twenty years, in respect to imprisonment upon civil process ; and we are entirely satisfied that the provisions of the code, construed in their plain and fair import, lead to no such result.

We think the remedy contained in subdivision one of the one hundred and seventy-ninth section, was designed for precisely such cases as that of the plaintiff in this suit; and that the stringent provision in the third subdivision, was intended to execute justice upon parties who should attempt to defeat the process of the court in suits to recover specific property, by putting the property out of their hands, and thereby preventing its seizure by the sheriff.

A history of the enactment corroborates this opinion. It appears, for the first time, in the amended code of 1849. The bail required in such a case in the code of 1848, and in the action of replevin by the revised statutes, was the ordinary special bail that the person of the defendant should be amenable to the process in the action. No change in this respect was proposed by the commissioners on practice and pleadings in 1849, and the change was made by the legislature of that year, in their amendments to the code of 1848.

We were referred by the plaintiff ⅞ counsel to the cases of Cary v. Hotaling, and Olmsted v. Hotaling, in the late supreme court, (1 Hill, 311, 317,) as authority that replevin could be maintained, after the party had sold and parted with the goods which he had illegally taken or detained. There is no doubt that the “ claim and delivery of personal property,” in the code, was intended as a substitute for the provisional relief theretofore obtained in the action of replevin. (Report of Commissioners of Practice, &c., in 1848, p. 169.) We have, therefore, maturely considered these authorities. The question really controverted, in the first case cited, was whether trespass would lie under the circumstances; and in the second, whether a partner who liad not participated in the fraud, could be made liable in tort with his guilty co-partner. It was undoubtedly assumed by the judge who delivered the opinion of the court, that replevin could be maintained in all cases where the party could bring trespass de bonis asportatis / but be did not discuss the point, and it does not appear to have been presented. The evidence showed that the defendants had sold the goods before the suits were brought, and therefore the point existed in the cause, although it was not noticed. As the law then stood, the only arrest authorized in replevin, was that now provided in the first subdivision of section 179 of the code, and the party could be held to bail with the same effect in trespass. The point was therefore of no practical importance.

Was the assumption of the judge in the cases in 1st Mill, warranted by the law as it then existed? Previous to the revised statutes replevin could not have been maintained in those cases. Although learned judges, by way of illustration, frequently said before the revised statutes, that replevin would lie wherever trespass could be brought, they did not intend to say that they were concurrent remedies in all cases. Wherever trespass would lie, and the goods were possessed by the defendant, replevin could be maintained; and this was all that those judges intended to assert. The same remark might be made as to most of the instances, in which, since the revised statutes, judges have said that replevin would lie wherever the party could maintain trespass or trover.

We repeat, that before the revised statutes, there was no such thing in this state, as replevin against a party, after he had entirely divested himself of the possession and control of the . goods claimed; except in the single case of. distress for rent, where the distrainor had proceeded fraudulently, or contrary to the wa. ote. permito;.n a ivpkom within ilu daw. i IN fraud in da pr.nuedinge, irt' nn an -i'.no act Ado bi',ubin>ru:ubig.ius t.i tin-orb ñu «if a dl-UVS' n,; A the bundled or Abe '• England.) The m ri<->‘ vo ' pmvlv j. . B -..ugh: :l.e r¡ eeític "• imE. mid rfn'b -- rudew the g '“I- were o bed, or other g<« Ml- tiiket. fi-eii b, defendant a’VC,,, A the evupttu ca~>> ju-t outed. a -ui-titutc l'<>r tii* — o dhtr.br.ed, mu the .lis-trahier ] n inn-, ’,/ the latter he;, etui the Rack >4 the ,~Lerif£ The jteie’U'-'.t ¾ ⅛, †⅛ the pr<.pert\ airehdy -ti/c-d niel xeeteied tü T e jot,* i'll, v At ihi’muge- e>r its oemlCr >11. Tuav v, a1- no judgment tur its values e.r tor any uiher uaiuage», Hence the action alwavs ensued immediately on the taking of the property. It seas even contended, on distresses for rent, (which at that period were the origin of most of the actions of replevin.) that the suit could not he brought after the five days within which the tenant was permitted to make a replevy, although it were commenced before an actual sale of the distress. We refer, for the state of the action before the revised statutes, to Co. Litt. 145 b.; Bacon's Abr., Replevin, A.; 2 Dunlap's Pr. 862. 880; Graham's Pr. 55, 726, 1st Ed.; and Jacob v. King, 5 Taunt. 451.

XI ,c v * ^ ¡i n a tí m ⅜ e \ten u o the hi a am < e ;vp¡es n, t ■ ^ < uses y in iv ‘¡⅝1 ⅛ oai tus i.g * t . ho ens woim and * ⅛ wmv v,do . imd ; m a it 4 de-vlA-d . ■ *’hc A >uuA ,> r the Ui-ms-p 4 . lv *f, nun ’ >” dm ¡'«nun nf ihtu mm- " lA ‘he u:i-j>:~ i rt'-n >>r d, O mi'>T . Tin tAm A íA v r.t 4 i m-i A>c-d. inu-: “Awo 1⅝ A. If. r .we. 010 tea A D. na-' t.uo o ano .lino uuje ’O ,, s.'i- i-rol--' imjawb detain." a- the i ..s- „i;n A;"i an 1 ir .’i'iuciaui 4 e -Amir, on leeeo ana. -weir’'! v fir a return ot do , i,., ,i ¡, man 'A At, h o,jiihiit, ⅞!-,. In s;otv the and d, ,r oi Ac ; hdnhíh and t • 'd.m.o. *. e don ’ i. o; e .1 íc i- ml 1 ar in í rio* y. A< o aim tA lido i a o' *, e r i iw t, e'er. Tin1 ⅛ ⅛ ¡rt i,e \t piio.m. ,4 *Le cr f iMor’ig (hr oA.hy .h’;' -long rut j .n of th- |r . tv'y T i die pktu.rtL ,2 U. 8. .Ad, A„ S 1, A w ion "It tic] •■»p>rt\ ih'Ci.b-il ;n t:,c t,tit. Lute bit t wieoshur c .ne.-ah‘d - • dint the ,-hAtf ciriior ’.take deli'.erv .hu-. he wa- tVipbreb (o anvo d.e de fondant, who was thempea to give bail as in personal actions. (Ibid. § 11, 12, 22 to 27.) This was a substitute tor the capias in vnthernam of the common law, and was extended to all cases of replevin. The declaration (§ 38,) is again carefully limited to a detention existing at the commencement of the suit. The whole statute, without citing it more at large, shows that the action was still a possessory action against personal property, extended to cases, where before, even if the goods were in the defendant’s custody, trover or detinue were the only remedies.

By the revised statutes, several valuable changes were made in the practice in replevin, besides the substitute of the arrest before mentioned; among others, a judgment for the value of the property and damages, when the plaintiff has not obtained the goods by the replevin. The language of the eleventh section before cited, taken in connexion with the nature of the action as declared by the first, section, and the form of the writ and the declaration, was plainly limited to a removal of the property made to avoid the service of the writ. It seems to us entirely incongruous, to make the statute say, when the writ is given only for a present detention, that the party shall be arrested under it, for a disposal of the property made before it was issued. We do not intend to speak of removals in fraud of the law when a writ was expected.

The revisers, in proposing the changes in replevin, say it has been extended so as to make it a substitute for detinue, and a concurrent remedy with trespass and trover, in all cases of the unlawful caption or detention of personal property. We suppose the latter expression was used by the revisers, in the same sense that it was before that time used by judges, in comparing replevin with trespass, as we have already mentioned. We do not imagine that the revisers intended to say, that by their proposed change, replevin could be brought against the bailee of a horse, a year after he had sold the horse to a stranger. In fine, we are fully convinced, that the revised statutes did not warrant the bringing of replevin in a case like the one before us, and that the assumption to that effect in the cases cited from 1st Hill, was unfounded.

Such being our conclusion, and all agreeing that the “ claim and delivery of personal property” under the code, is a substitute for replevin as it before existed; it fortifies our opinion founded upon the code itself, that this provisional remedy cannot be maintained against a party who has not in fact or in law the possession or control of the property claimed.

Some stress was laid on the addition in the code of the words “ disposed of,” to the removal or concealment mentioned in the eleventh section of the revised statutes. Wo think this was intended to provide for the event of the defendant’s selling or otherwise parting with the property in fraud of the action ; as for example, after the action was commenced and before service by the sheriff. It cannot be supposed that those words were designed to change the whole nature of the remedy substituted for replevin, and to give it a scope vastly wider than its original ever had obtained.

Upon the whole, we entertain no doubt that the plaintiff has misconceived his remedy, and that an order for arrest under the third subdivision of section 179 of the code, cannot be made in a case like this.

It should be stated, in conclusion, that all the judges of this court have been consulted, and concurred in this opinion.

The order appealed from must be affirmed.


author: Oaklet, Oh. J.

text:
    White v. Cummings.
    Wn»’« ’’i < ir* d , f .¡'ini, t - y*’ un «u u'-vm r † * v* hi > , on oath, might sub-i t t’1 U 5 ha u u> a ⅜ nn") ti p~ ( ’ u»" th deft nh -tni may put in a sworn a'w\ . i -t Hunr th tt i » a ut _ tí- n-iiia-oí the c>>mplaint in the usual •p ,’ e , hm ⅛ „ ui -vm r w \h put i i- th* ah ¡íaTii h s-> oxcepted.
    i ,x t _ * fh di jin ♦ th i Tag ( tiui it ieturn it on the ground th it H irU Ld' tf <>- <1 \ t r,\
    »In r> tnri * ¡»1» xh ¡ r ¿ v, , «> tu h jmü % trined the party served with n mi’-t pul if ont the Jf-Wt t" tih aH.'i-ejim
    January 25, 1851.
    The complaint, setting forth a libel, was verified by oath. The defendant’s attorney served an answer, which was not veri-fiecL The plaintiff’s attorney kept it nineteen days, and then returned it, with a message that the answer was defective and would not be received, but without pointing out the defect. Thereupon, the time for answering having expired, the plaintiff applied at the special term for judgment as on a failure to answer.
   Oaklet, Oh. J.

(with the concurrence of Sandford and Paine, Justices.) The application is opposed on two grounds, the practice in respect of both of which is virtually settled, but we deem it well to mention it again. 1. It is objected, that the nature of the libel is such, that the defendant ought not to be required to answer on oath, because the matters to be stated might subject him to a criminal prosecution, 2. That the plaintiff kept the answer so long, he cannot treat it as a nullity ; and moreover, he has no right to return it, unless he pointed out the defect.

The objections are all well taken. As to the first, the rule was adopted and the practice correctly laid down in Hill v. Muller. 2 Sand. 684. The defendant need not admit or deny the allegations, which he will state in his answer on oath, he might subject himself to a criminal prosecution by answering. This statement will put in issue such allegations. . As to the residue of the complaint, he will answer in the usual manner. 2. The plaintiff, by keeping the answer so long, was barred from objecting to its form. And on returning it, if it had been in time, lie was bound to point out the nature of the alleged defect. It was so held in Laimbeer v. Allen, 2 Sand. 648. The practice pursued by the plaintiff was not reasonable, and we are not disposed to sustain it. The defendant is at liberty to answer in tbe mode before mentioned.

Application denied.


author: Campbell, J.

text:
    Chichester and others v. Livingston and others.
    Where the examination of a party as a witness before the trial is sought merely to avoid the necessity of calling him at the trial, it can only take place after issue joined.
    A party may be examined conditionally, as other witnesses, where he is about to depart from the state, or on special application for like causes ; but such examination can only be had on the previous order of the court.
    Whether he may be so examined by way of discovery, under a special order, to enable the adverse party to answer or reply, Quere.

    Jan. 25, 1851.
    The points presented, and the matters bearing upon them, are stated in the decision.
    it*. Goodman, for the plaintiffs.

      I. 11. Marsh, for the defendants.
   Campbell, J.

’The defendant, Livingston, was served with a subpoena to attend before a justice of this court for the purpose of being examined, pursuant to the provisions of chapter sixth of the twelfth title of the code. The complaint and answer have been served, but no reply has been put in. The counsel for the plaintiffs admitted that he intended to reply, and the counsel for the defendants insists that such examination of the defendant Livingston cannot be had until the reply has been put in, and the case is at issue. I held in the case of Balbiani v. Grasheim, 2d Code Reporter 75, that a party cannot be examined as a witness in the cause, until the pleadings are all in and the cause is at issue.

Chapter sixth of the code declares that no action to obtain a discovery under oath in aid of the prosecution or defence of another action shall be allowed, but a party to an action may be examined as a witness at the instance of the adverse party, and this examination may be had, either at the trial or at any time before trial. It is also provided (§ 395,) that “ a pajty examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matterpe/'iuicni to the inane.'' It would seem that the issue was first to he made up between the parties before the examination could take place. This chapter was enacted by the legislature substantially as reported, and the commissioners in reporting it say, “The provisions contained in this chapter we have considered so important to the success of our system, that from the first we have contemplated their introduction. Meantime the legislature, at their late session, have passed an act upon the subject. That act however contemplates the examination at the trial only. We think it important to extend it, so as to permit the examination to take place before the trial, at the option of the party.” They add, “ One of the great benefits to be expected from the examination of the parties is, the relief it will afford to the rest of the community In exempting them, to a considerable degree, from attendance as witnesses, to prove facts which the parties respectively know and ought never to dispute, and would not dispute, if they were put to their oaths. To effect this object it should seem necessary to permit the examination beforehand, that the admission of the party may save the necessity of a witness.”

Tim party is to be examined as a witness. Tie may be examined at the trial, or before the trial, on matters pertinent to the issue. He is examined, to prevent the necessity of other persons attending as witnesses, to prove facts which the parties themselves know and ought not to dispute. The Jaw passed by the legislature previous to the code, was like the recent English act, and provided only for the examination of the party at the trial of the cause. The code has provided in addition, that such examination may he had before the trial so that the proceedings at the trial may thus be often materially shortened.

But, though the code has abolished actions for a discovery, it has been thought by some, that a discovery may be had in the same action, where such discovery is necessary, in order to enable the party seeking the discovery to answer or reply. This may be so, but in that case such examination ought not to take place, unless by special order of the court, on cause shown by affidavit, as to tlie necessity of tlie examination. Tlie party examined is entitled to be examined on bis own behalf, on matters pertinent to tlie issue. This privilege he cannot well avail himself of, if he is summoned for examination, before he lias answered or replied. The fair, and, as it seems to me, true construction of the code is, that the examination of the party should take place after issue joined. But there .may be exceptions. The party is to be examined as a witness, and he may be examined conditionally. If he is about to depart out of the jurisdiction of the court, and it shall be made to appear that his adversary will probably be unable to examine him after issue joined, or to examine him on the trial of the cause, then such examination may doubtless be had before issue, in the same manner as that of any other witness in the cause, who is about to depart from the state.

As this is an interesting and important question of practice, I have conferred with all my associates, and they are all of opinion with me, that where a party is examined as a witness, before the trial, merely for the purpose of avoiding the necessity of calling him at the trial, then such examination can only take place after issue joined.

I do not mean to decide, nor is it necessary to determine in disposing of this motion, whether a party can be examined by his adversary, in order to enable the adversary to answer or reply. It is possible that a case might be presented, where it would be evident that the ends of justice required such an examination before answer or reply, even under the present law, which gives the absolute right to such examination after issue joined.

In the ease before us, there is no pretence that the party sought to be examined is about to depart from the state, nor has any special application for his examination been made, founded upon any facts showing the necessity for such examination, in order to enable the plaintiff to reply. I shall not, therefore, direct the examination of the defendant to proceed, but the plaintiff may, if he chooses, renew the application, founded upon affidavits, showing the necessity for such examination, before he replies, if in his judgment such necessity exists. In the cases of Porter v. Elliot, 2 Sand. S. C. R. 667, and Anderson v. Johnson, 1 ibid. 713, cited on the argument, the causes were at issue.


author: Sandfokd, J.

text:
    Lentilhon v. The Mayor, Aldermen, and Commonalty of the City of New York.
    A judgment upon a verdict is not perfected, under thelcode, until entered in the judgment-book, with, the amount of costs (if any) recoverable, inserted therein.
    Until so entered, it is not a judgment from which an appeal can be taken to the general term.
    If the prevailing party neglect to complete Ms judgment, the other party may notify him to do so, and after a reasonable time elapsed, the court on motion will compel him to perfect it with costs.
    The entry made by the clerk, by the direction of the court, on receiving a verdict, of the judgment to be rendered thereon, is not the judgment.

    The practice stated and approved, by which, after the jury pass upon the disputed facts, the judge gives a final judgment on rare or difficult points of law involved, with leave to appeal to the general term without security ; where the parties so agree in open court, and no prejudice to either is likely to ensue.
    An agreement in open court, on a verdict being given, that the defendant may appeal without security, followed by such an appeal, with no objection taken at the time, and treated as regular by various acts for four or five months afterwards, will preclude the plaintiff from then alleging that the appeal was null because no undertaking was executed pursuant to the code.
    (Before Oakley, Ch. J., and Sandford, J.)
    Feb. 15, 1851.
    The action was for tort, tried June 18th, 1850, before Paine, J., when a verdict was given for the plaintiffs. On the rendition of the same, the judge directed a judgment to be entered thereon, and the plaintiffs’ counsel agreed, in the presence of the court, that the defendants might appeal to the general term without giving security. The following entry of judgment was made subsequently, by the clerk of the court, in the judgment-book, the blank in which has never been filled, viz. (Title of the cause, date, and attorney.) “ This cause coining on to be tried before Justice Paine and a jury, the jury found a verdict for the plaintiff for $977 81 damages. On motion of J. Lux, plaintiff’s attorney, ordered judgment therefor with $ costs and disbursements.”

      On the 19tli of June, the defendants treating this as a final judgment, gave notice of appeal therefrom to the clerk and the plaintiff’s attorney. No undertaking was filed, but the plaintiff’s attorney made no objection on that ground, until the December term; and in the mean time had received notices of argument without objection, and had signed a stipulation in which the cause was treated as pending before the general term, on appeal. The costs of suit have never been adjusted by the clerk, nor any step taken towards perfecting the judgment at the special term, beyond the entry before mentioned. The plaintiff now moves to strike the cause from the general term calendar, on the ground that the appeal was void, 1, because no judgment had been perfected ; and 2, no undertaking was filed.

      J. Lux, for the plaintiff.

      If, II. Anderson and A. J. Willard, for the defendants.
   By the Coubt.

Sandfokd, J.

Since the code, a practice has to some extent prevailed in our court, by which the judge at the trial term, both parties consenting, has rendered a formal judgment, after the jury have passed on the disputed facts, without actually deciding the question of law involved, with leave to the losing party to appeal to the general term without security. The agreement of both parties to these terms is made in open court, and entered by the clerk in the minutes of the trial. We are disposed to encourage this practice, in eases where the questions of law presented are new or difficult, where an appeal is to be expected in any event, and where no prejudice is likely to ensue from the omission to give security. It frequently happens, that the court may in this mode dispose of the cause after a single trial before a jury, when an adverse ruling of the law would result in a reversal and a second trial.

It is not necessary in this case, to decide whether an agreement to waive security, made in open court, but not entered in the minutes, will be held to bind the party. Such an agreement, with the omission to object to the appeal, when made, because of the want of security, and the subsequent treatment of the appeal as pending, are sufficient to preclude the plaintiff from now setting up that the appeal was irregular and null for that cause.

There is, however, another difficulty which is insuperable. No judgment has been entered at the special term. The entry produced, so far as it is complete, is merely a transcript of the judge’s direction of the judgment to be rendered on the verdict, under section 264 of the code. The judgment itself, is to be entered by the clerk in the judgment book, as provided in section 279 and 280. In order to make this entry, the clerk, besides the judge’s direction as provided in section 264, was required in this case, to adjust the amount of the plaintiff’s costs and disbursements, and the interest accrued on the verdict. — (Code, § 310, 311.) Both of these items must be inserted in the entry of the judgment. Then, and not before, the judgment, would be complete and perfect, and the clerk could make up the judgment roll, and the judgment could be docketed and collected. —(Ibid. § 281, 282, 287.)

This appears to us to be the plain effect of the code. It is obvious that it should be so, because, after an appeal, the court below, the special term, can properly act no further in the matter, unless the judgment be reversed. If it be affirmed, it will remain precisely as it was when appealed from; and if that were in a shape incapable of execution, it would present an embarrassing question as to the jurisdiction of the court below to remedy the defect. In this case, the appeal was premature. If the prevailing- party neglect to complete his judgment, when the other party is desirous to appeal and obtain a speedy decision, the course of the latter is to notify the former to perfect his judgment for that purpose ; and if he do not perfect it in a reasonable time, the court will, on motion, compel him to do so with costs, unless some good cause for the delay be shown.

The appeal must be dismissed, without costs to either party.


text:
    Anonymous.
    In proceedings to examine the judgment debtor, supplementary to execution, the plaintiff, to obtain the order, will not be required to show that the debtor has any property ; but if on examining the debtor, no property be discovered, the plaintiff will be ordered to pay costs to the debtor, unless some good reason appear for requiring the examination.
    March 22, 1851.
   The whole court, on considering the question, determined, that hereafter the affidavit presented for the purpose of obtaining the order for the examination of a judgment, and execution debtor, under the first clause of section two hundred and ninety-two of the code of procedure, need not state anything on the subject of the debtor’s property ; and that the practice in that respect, pointed out in the note to Jones v. Lawlin, 1 Sand. R. 722, will no longer be enforced.

At the same time, they held, that if on the examination of the debtor, no property or effects applicable to the judgment should be discovered, the creditor will be ordered to pay costs to the debtor, pursuant to section three hundred and one of the code, unless the creditor can show some good reason for his having required the debtor to submit to the examination.


author: Campbell, ,T.

text:
    Howard v. Henriques and others.
    The principle upon which trade marks are protected, is not confined to persona) property. It applies to a name applied or appropriated to real property, as to a public hotel.
    Where the proprietor of a hotel, opened it under the name of Irving House, and it very soon became generally and equally known as the Irving House and Trving Hotel, and was kept by him while thus designated ; it was held that he had a right to the use of those names, to the exclusion of other persons in the same city or town ; and on their subsequently setting up a hotel called Irving Hotel, they were • restrained from the use of that name by injunction.
    March 22, 1851.

      The decision of the court contains a statement of the facts. The motion to dissolve the injunction was heard by Campbell, J.. with three other justices sitting with him as advisory.

      John Graham, for the defendant,

      J. jG. JBurrill, Jrfor the plaintiff,
   Campbell, ,T.

This action was commenced by the plaintiff,who is the proprietor of a hotel in this city, known as the Irving House or Irving Hotel, and which was opened and named by him “ Irving House ” in the fall of 1848, against the defendants as proprietors of another hotel in this city, which they have also called the Irving Hotel, and which was opened and named by the defendants, during the past summer. An injunction was granted by one of the justices of this court, restraining the defendants from using the name of Irving Hotel for their house, after an early day designated. A motion is made to dissolve this injunction. The plaintiff’s house, although originally designated by him, as the Irving House, very soon became generally known also as the Irving Hotel, and was designated by both names indiscriminately, for more than a year before the defendants opened their hotel.

It was urged by the defendant’s counsel, first that the plaintiff had not appropriated the name, because no such name appeared on the external walls of Ins house. And second, even if it did so appear, the name was not the subject of appropriation as applied to a hotel; that the principle upon which trade marks and other similar rights had been protected, was applicable alone to personal property, to manufactured articles, to such things as were necessarily movable, and in reference to which frauds could he practised without being easily detected, or at all events frauds could be practised operating injuriously upon the pruty claiming the trade mark and also upon the public.

There can bo no doubt of the appropriation of the name by the plaintiff for his hotel. It was on all Ids bills rendered to his guests, on cards, on large cards placed in other hotels throughout various portions of the country, and in cabins of steam boats and steam ships, accompanied by an engraved view of the building, and was so designated in numerous advertisements in public newspapers circulating throughout the country. If we were permitted to speak from our own knowledge, we should say that the fact of such name being applied by the plaintiff to his hotel was, at the time the defendants applied the same name to their hotel, and is now, notorious. There would he no more necessity for the plaintiff to place in large letters upon the front of his building, “ This is the Irving House,” in order to designate it and secure an appropriation of the name, than there would be to write on the public edifices of the city “ This is the City Hall,” and “ This is Trinity Church.”

Upon the second objection of the defendant, I at first had some doubt, which, by a more careful consideration and by conference with my associates, lias been removed.

¥e think that the principle of the rule is the same, to whatever subject it may be applied, and that a party will be protected in the use of a name which he has appropriated and by his skill rendered valuable, whether the same is upon articles of personal property which he may manufacture, or applied to a hotel where he has built up a prosperous bitsiness.

¥e are not disposed to interfere with the lawful pursuits of any one. Every man may, and ought to be permitted, to pursue a lawful calling in his own way, provided he does not encroach upon the rights of his neighbor or the public good. But he must not, by any deceitful or other practice, impose upon the public, and he must not by dressing himself in another man’s garments, and by assuming another man’s name, endeavor to deprive, that man of his own individuality and thus despoil him of the gains to which by his industry and skill he is fairly entitled. To make the application; if one man has, by close attention to the comfort of his guests, and by superior energy, made his hotel desirable for the traveller, and caused its name to become popular throughout the land, another man ought not to be permitted to assume the same name in the same town, and thus deprive him who first appropriated the name, of some portion of the fruits of that good will which honestly belong to him alone.

It can hardly require argument, to show that the use by the defendants of the same name for their hotel, interferes with the plaintiff’s business ; — and the fact is fully established by the affidavits. Such a result, under the circumstances, would seem to be inevitable. If the defendants may use the name, others may do the same, and the public would be inconvenienced by the confusion which would necessarily arise.

There is no hardship in enforcing the rule against these defendants. There is an abundance of names by which they can designate their hotel, and if they can succeed by their own efforts, by their skill and careful attention in building up a profitable business, in causing their hotel to become known and popular through the land, they will in turn be entitled to protection against those who may seek to deprive them of the advantages which they may thus honestly acquire.

The three of my associates, the Chief Justice and Justices Duer and Mason, who were present at the argument, together with Justice Sandford who granted the injunction, concur with me in opinion that the injunction must stand.

The motion to dissolve it must be denied with costs.


author: Sandfobd, J.,

text:
    McConnell v. Adams.
    An infant defendant over fourteen, served with a summons,, may apply after, as well as before the expiration of twenty days, for the appointment of a guardian ad litem, if none have been appointed for him,
    April 5, 1851.
    Is this case, the defendant, who was nineteen years of age, was served with a summons in December last. On the 22nd of February, the plaintiff prepared papers on which to apply for the appointment of a guardian act litem, but before those were acted upon, the defendant on the 25th of February presented a petition, and procured such guardian to be appointed. The guardian ad litem demanded a copy of the complaint, which was not furnished to him, and on the 21st of March, lie gave notice of a motion to dismiss the complaint. The plaintiff insisted that the defendant could not apply for the appointment of a guardian after twenty days.

      Q. MoAdam, for the motion.

      J. II. Hhle, for the plaintiff.
   Sandfobd, J.,

with the concurrence of two of Ms associates, held that the appointment was properly made. That the provision in section 118 of the code, was intended for the benefit and protection of the infant, to secure him the opportunity of having a guardian of his own selection, by giving him twenty days after the service of the summons, in which no other person could apply. After that time, the plaintiff, or any relative or friend of the infant might make the application, but the infant was still at liberty to apply himself, until forestalled by such application.


author: Oakley, Ch. J.

text:
    Long v. Hall.
    Tho residence of a party, within the statute requiring security for costs, is not affected by the fact that he is a fugitive from service in another state, to which, pending the suit, he is removed upon the application of his master.
    Such involuntary removal, however, effects a change of residence, and he may be required to give security for costs.
    Where a plaintiff is a resident at the commencement of the suit, his subsequent removal from the state or beyond the jurisdiction of the court, will not make his attorney liable for costs, although he proceeds in the suit.
    April 12, 1851.
    Motion at chambers, decided by the Chief Justice after consulting with all the justices.
    Whitehead, for the plaintiff.

      O. M. Hall, in person.
   Oakley, Ch. J.

This is an application on the part of the defendant, for a dismissal of the plaintiff’s action, and that Ids attorney be ordered to pay the defendant’s costs. The plaintiff' was arrested under the recent act of Congress in reference to fugitive slaves, and was carried before the defendant who was one of the United States Commissioners. Subsequently, the plaintiff commenced an action against the defendant, to recover damages for the arrest. After the commencement of this suit, the plaintiff was delivered up under the law, to the claimant, and carried back to his master in Georgia. An order was thereupon made in the usual way, that the plaintiff file security for costs, on the ground that he was a non-resident. The plaintiff neglecting to comply with this order, an application is now made that his action be dismissed, and that the attorney be ordered to pay the costs. It is said the involuntary removal of the plaintiff:’ from the state, does not change his place of residence. This we cannot accede to. The part of the motion asking that the complaint be dismissed, must be allowed, hut we think that the attorney should not be compelled to pay the costs.

It was urged by the defendant’s attorney, that the plaintiff was never in fact a resident; that being a slave, his residence was that of his master, and that while here, he was here but temporarily, as a fugitive. It seems he was actually resident here two years, and this we think must determine the question under the statute. Besides, it is by no means established that the plaintiff is a slave. Primó facie the plaintiff was a free man at the time of commencing the suit. The proceeding under the act of Congress was not a determination of the fact that he was a slave, but it was merely that he should be remanded to the state of Georgia, where he is at full liberty to have the question tried and adjudicated.

It was taken for granted on the argument, that the attorney was liable for the costs, if lie took any step in the cause after his client became non-resident. This is an error. The statute imposes the liability on the attorney, only when the plaintiff is a non-resident at the commencement of the suit. — (Alexander v. Carpenter, 3 Denio, 260.) The circumstance that the plaintiff subsequently removes out of the state or out of the jurisdiction of the court, does not render his attorney liable for costs, although he continues the proceedings in the cause.


text:
    Falconer v. Elias.
    On a motion to discharge an order of arrest, founded on affidavits denying the grounds on which it was issued, the court will look into and weigh the affidavits on both sides, in order to determine whether the arrest shall stand. — (See Lee y. Elias, post.)

    April 12, 1851.
    Motion at chambers. The facts appear sufficiently in the decision.

      J. K Bur-rill, Jr., for the plaintiff.

      A. JR. Dyett, for the defendant.
   Oaklet, Oh. J.

The defendants were arrested, and held to bail in an action instituted by the plaintiff, charging them with obtaining goods under fraudulent representations. They now move to be discharged from the order of arrest. The motion is made upon an affidavit of the defendants, denying all the allegations of fraud set up in the complaint and in the affidavits, or. which the order of arrest was granted.

The main question raised upon the argument, and which is the important question in the case, is this, whether where the fraud depend on specific facts, which are denied in the affidavits on which the motion to discharge is made, the court have the power to look into the affidavits, and determine the probability or improbability of the alleged fraud, or whither, like the case of an injunction, a denial of the allegations upon which it is obtained, is fatal to the arrest. I am of opinion that the court has the power of looking into the affidavits, and deciding on their probable truth, and in this opinion, mv brethren all concur. There is no other way of accounting for that provision of the code, which allows the plaintiff in a case of this kind to introduce affidavits in opposition to the application to make the order of arrest. This section can have no meaning or object, unless it permits the court to weigh the affidavits, and decide upon the truth of the facts, (The chief justice then examined the affidavits, and decided that the arrest should be retained, with a mitigation of the amount of bail.)


author: Dtter, J.

text:
    Brown v. Jenison.
    A sham answer or defence, is one which is false in fact and not pleaded in good faith. It may be good in form, although a sham answer.
    A frivolous answer is one that shows no defence to the action.
    Each may he stricken out on motion.
    April 12, 1851.
    Motion to strike out an answer, made at chambers, brought up by appeal, and heard by four of the justices of the court.
   By the Codkt.

Dtter, J.

The plaintiff referred to section 152 of the code, but it does not apply to his motion. A sham answer and defence, is one that is false in fact, and not pleaded in good faith. It may be perfectly good in form, and to all appearance a perfect defence. Section 152 provides for striking out such answers. A frivolous answer, is one that shows no de-fence, conceding all that it alleges to be true. Each may be stricken out on motion, but it is under different provisions of the code. The question here is, whether the answer is frivolous. (The judge then examined the answer in this respect.)


text:
    Hanson v. Tripler.
    The issuing of an attachment against a party as a non-resident debtor, will not prevent an execution creditor from continuing proceedings supplementary to execution against persons alleged to have property belonging to the debtor.
    The court may, in such ease, appoint a receiver of the property, in the hands of such persons, to preserve it; and if the attachment be prosecuted, the question of right may then be determined.
    April 12, 1851.
    The question arose on proceedings supplementary to the execution, and was decided by the chief justice, after consulting all the justices. The plaintiff had obtained a judgment against the defendant, upon which an execution had been issued to the, sheriff of the city and county of blew York, where the defendant resided. The plaintiff', upon an affidavit that certain parties: had property of the judgment, debtor in their possession, to an amount exceeding ten dollars, then applied to one of the justices of this court, and obtained an order under § 294 of the code of procedure, requiring those parties to appear and be examined on oath concerning the same. Upon the return day of the order, the parties appeared by their counsel, and moved to dismiss the order, oil the ground that an attachment had issued against the property of the defendant as a non resident debtor under the revised statutes, and notice thereof served prior to the service of the order of the judge, though after the latter was issued ; and that as, by the provision of the statute, all property of the debtor was absolutely enjoined by the attachment, in whatever hands it might be, the proceedings under the order* were of no practical value.

      C. A. Davison, for the plaintiff.

      W. Mulooh, for the defendant.
   Oaklet, Oh. J.

We think, that the plaintiff is entitled to continue the proceedings which he has instituted. He has shown a right to have the property of the defendant secured for the satisfaction of his judgment, within the provisions of the statute ; and we do not see how he can be divested of the right thus obtained, by the mere fact that an attachment has issued against the property of the defendant. It may be, that the attachment will be discontinued, or set aside. It is, therefore, proper, that the examination should proceed, and if, at the termination of the inquiry, it should be ascertained, that the parties have in their possession property of the defendant, a receiver may be appointed. If the attachment be continued, this proceeding will not determine the right. The property will be preserved, and the question of right, between the attaching creditors and the receiver, can then be determined. In the mean time, whatever order is made by the court, it will he a complete protection to these parties. This is not the proper place to raise the question between the rival creditors, which they attempt to present.

Motion denied.


author: Mason, J.

text:
    McCrane v. Moulton.
    A summons by which a suit is commenced, cannot be amended without leave of the court.
    May 10, 1851.
    In this and several other eases against the same defendant, the plaintiff’s attorney, discovering a mistake in the summons by which he commenced the suits, amended them as of course, and served them anew. The defendant moved, in each suit, to set aside the amended summons.

      A. Mathews, for the defendant.

      G. Woodman and G. Barstow, for the plaintiffs.
   Mason, J.

(with the concurrence of all the justices.) A summons cannot be amended without leave of the court. Section 172 of the code, allowing a pleading to be once amended of course, does not apply to a summons, which is not a pleading, but pi’ocess. The power of amendment is in terms confined to the court by § 178.

The motion to set aside the amended summons in each case is granted without costs.


text:
    Lee and others v. Elias and others.
    Where the complaint sets up a demand upon a contract, e. g. a promissory note, and claims judgment for a specific sum of money, it is improper to insert in it allegations that the defendant was guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought.
    In. such a case, the question of fraud cannot be put in issue by the pleadings and thus brought to trial, in order to ascertain whether the defendant is subject to arrest or to an execution against his person.
    If the plaintiff desire to take the person of the defendant in execution in such an action, he must cause him to be arrested while the suit is pending, under the provisions of the code relative to arrest and bail.
    May 10, 1851.

      Motion to strike out portions of the complaint, as irrelevant and redundant. The matters appear in the decision, which was pronounced upon advisement with all the justices of the court.

      A. B. Dyett, for the defendants.

      J. E. Bm-rill, Jr., for the plaintiffs.
   Campbell, J.

The summons was for a money demand, and the complaint claims that the plaintiffs are payees and owners of a promissory note made by defendants, and concludes with a demand for judgment for a specific sum of money. The complaint also contains allegations that the goods for which the promissory note was given were fraudulently procured from the plaintiffs. A motion is made to strike out this part of the complaint which sets up the fraud.

The defendants were not arrested, nor was any process for arrest asked for, but it is insisted by the plaintiffs that these allegations of fraud should be retained in order to enable them' to obtain an execution against the persons of the defendants, after an execution has been returned unsatisfied against their property, pursuant to the provisions of section 288 of the code.

I think these allegations must be stricken from the complaint. It seems to me that great oppression might result from allowing this course of pleading to be followed. A summons may contain a demand for a specific sum of money which the defendant owes, and against which he can make no defence. A complaint may be filed demanding the judgment for the money specified in the summons, and also setting up gross frauds on the part of the defendant; and the defendant may thus be defaulted and made to admit charges of fraud which have never come to his notice, and thus also subject himself to arrest and imprisonment. As originally reported, section 179 of the eode only contained the three first subdivisions, embracing actions ex delicto, where the pleadings embracing the summons, show that the claim is for an uncertain amount of damages. In those cases, a defendant would necessarily look into the claim made against him. The provisions for arrest for a fraudulent purchase or procurement of goods were inserted by the legislature, and the section 288 remaining as reported, caused the point of difficulty.

In cases arising under the fourth and fifth subdivisions of section 179, I think, if the plaintiff wish to obtain the benefit of the execution provided for against the person in section 288, he must set up the fraud in the commencement of the suit, or at least before judgment, and cause the defendant to be arrested and held to bail. (Code, § 183, 204.) We cannot accede to the idea, that the question of fraud, where it is in no wise applicable to the judgment to be rendered, is to be put in issue by the pleadings, in order to be tried in the action, merely to ascertain whether the case is one in which the defendant might have been arrested under sections 179 and 181 of the code, and his person taken in execution under section 288.

The motion must be granted, but as the point is new, without costs.


text:
    Wiggins v. Gans.
    An answer is indefinite and uncertain, which sets up by way of set off, that the plaintiff is indebted on account of previous transactions, in a sum equal to his claim, as will appear by reference to an account current stated in tire complaint to have been rendered by the defendant to the plaintiff.
    A defendant under an order to make an answer more definite, does not comply with the order by stating the set off to be for work and labor, goods, wares, &-c. and money lent, &e. in the language of the common counts in assumpsit.
    May 10, 1851.
    Motion to strike out an answer. The matters appear in the decision.

      H. A. Oram, for the plaintiff.

      O. jS’. Appleby, for the defendant.
   Mason, J.

(with the concurrence of the other Justices.) An answer which sets up by way of set-off, that the plaintiff, pre-vieras to tlie accruing of the demand set forth in the complaint, was indebted to the defendant on account of previous transactions, in a sum of money equal to the sum claimed by the plaintiff, as will appear by the account current rendered by the defendant as stated in the complaint, is indefinite and uncertain.

The defendant -was under an order, requiring him to make the answer in this respect definite and certain by amendment, and he now states the set-off to be for work and labor, and for goods, wares, and merchandise, and for money lent, paid out, and expended, in the language of the common counts in actions of assumpsit, under the old practice. The former answer is in no respect a compliance with the order-, and must be stricken out, with $10 costs.

But the defendant may, on presenting a sufficient answer, duly verified, to one of the justices of the court, within five days, apply for-permission to put the same in.


text:
    Sheldon and others v. Wood.
    The provision of the code, relative to the reference of causes, is much broader than that of the revised statutes.
    Where the trial of the issue in the cause will require the examination of a long account on either side, a reference will be ordered, although it appear that the ground of the action is fraud.
    May 10, 1851.
    The plaintiff moved in this cause for a reference, which was opposed, on the ground that the action was founded upon alleged frauds of the defendant. The motion was heard before the Chief Justice and Mason, J., and decided with the concurrence of the entire court.

      E. Sandford, for the plaintiff.

      T. W. Tucker, for the defendant.
   Mason, J.

The court has power to order a reference in actions Bounding in tort, where the trial of the issues of íaet siiall require the examination of a long account. Therefore where an action is brought to recover back money alleged to have been fraudulently charged in an account between the parties, a reference will be ordered, though the ground of the action is the fraud of the defendant.

Section 271 of the code is broader in its terms than the provisions of the revised statutes on the same subject. The latter provided for the appointment of referees in actions founded on contract; the code authorizes a reference in all actions whatever.

We think that the account in this cause could not well be investigated and settled by a jury, and the motion for a reference is therefore granted, the costs to abide the event of the suit.


author: By this Couet.

text:
    Bulkeley v. Keteltas and others.
    The filing with the county clerk, of a transcript of the docket of a judgment entered in tills court, and docketing the same with such clerk, is not a proceeding in this court which is stayed by an appeal from the judgment to the court of appeals perfected by giving security as prescribed by the code of procedure.
    May 31, 1851.
    Tins was a motion at the general term, before Oaklet, Oh, J., and Dues and Campbell, J.J., decided with the concurrence of two other justices. Judgment had been rendered in favor of the plaintiff at the special term, and affirmed by the general term on appeal. The defendants then appealed to the court of appeals, and gave the requisite security, pursuant to sections 334, 335, and 339 of the code. The. plaintiff, before receiving-notice of the appeal, had procured from the clerk transcripts of the docket of the judgment, and after being served with such notice, filed them with the clerks of the city and county of Hew York and the county of Kings, and docketed the judgment in those comities, (Code, § 282.) The appeal is still pending. The defendants moved that the plaintiff be compelled to vacate and cancel the dockets of the judgment so made after the appeal. on the ground that the plaintiff’s proceedings were stayed by the appeal before the filing of the transcripts.

      G. II. Smithy for the defendants.

      I. E..Bulkeley, in person.
   By this Couet.

TVe cannot see any ground upon which we can deprive the plaintiff of the lien on the property of the defendants, which he has acquired by docketing his judgment. The law gives him the right to file a transcript of the judgment for his security. The transcript here was procured before the appeal was perfected, so as to operate as a stay of proceedings for any purpose. After the perfecting of the appeal, no proceeding in this court can be had. A proceeding in court, we understand to be an act which is done by the authority or direction of the court, express or implied. Such, for instance, as the issuing of an execution, or the delivery by the clerk of a transcript of the judgment to the plaintiff. But when a transcript is once given to the plaintiff, the right to file it results from the law, and the filing of it cannot be considered as a “ proceeding in court,” or as a thing done by the authority of the court, within the meaning of the provision of the code on the subject of appeals.

Motion denied.


text:
    Frazer v. Phelps.
    A referee, to whom all the issues in the action have been referred, has not authority to order the production of books by either party, where there is no provision to that effect in the order of reference.
    This power is limited to the court, or a justice thereof, whether exercised under the code or the revised statutes.
    May 31, 1851.
   This wras a suit for an account against a trustee. After the cause was at issue on the answer and reply, it was, upon the consent of the parties, referred to a sole referee, pursuant to § 270 of the code. Among other matters which occurred on the trial before the referee, the plaintiff claimed to have established, that the defendant had used the trust funds in two different partnerships of which he was a member, and thus had rendered himself liable for the profits thereby earned.

The plaintiff thereupon required the defendant to produce the entries inRhe hooks of those firms, showing the profits made during the period the trust moneys were so used; and applied to the referee for an order to that effect. The referee, after argument, decided that the defendant should produce such entries, and made an order upon him accordingly.

The defendant failed to comply with the order, and the plaintiff moved for an attachment against him. After a formal decision at chambers, the motion was heard at the general term, by all the justices except, one, who concurred in the conclusion of the court.

The decision is stated at the head of the case. The court said, in addition, that on such a reference as this, where accounts-were to he taken, the referee’s certificate that the production of books and papers was necessary, would be regarded as presumptively sufficient, on a motion to a justice at chambers, to •warrant an order for such production. The burden of showing; that it ought not to be made, would be upon the adverse party.

Motion denied.


text:
    Hollister v. Spafford.
    In general, a reference will not be ordered, adversely, to take the examination of parties brought before a justice of the court, on proceedings supplementary to an execution.
    Where the parties agree to a reference, it will he ordered of course. And the’ matter will be referred, where it is apparent that it will be a protracted investí' gation, and the examinants are attended by counsel.
    May 31, 1851.
    This was a proceeding supplementary to the execution, in which, on advisement with all the justices of the court, it was deemed proper to announce the course of practice pursued in this court.
   Campbell, J.

The practice we have adopted, when judgment debtors, or persons alleged to have their property, are brought up for examination, on an order of one of the justices, is now stated, that it may be more fully understood.

As a general rule, we will not order a reference for this purpose, against the wishes of either party. The examination must proceed at the chambers of the court, where the justice in attendance at chambers, or holding the special term, can see that no injustice is done to examinants attending without counsel, and can dispose of the legal questions arising, to the great saving of trouble and expense to the parties.

As such examinations are usually conducted, his actual attention to them will he required only occasionally, and they will not interfere materially with his other duties.

Wherever the parties agree to a reference, it will be ordered of course. So, when it becomes apparent that a difficult or protracted investigation must ensue, and the examinants have counsel, a reference will he directed.


text:
    Fabbricotti v. Launitz.
    Matter is irrelevant or redundant in a pleading, which, found in connexion with pertinent allegations, has no bearing on the subject matter of the controversy, and cannot affect the decision of the cause.
    If the whole pleading, e. g. an answer is no defence, it is insufficient, and may be demurred to. It is not irrelevant, within the meaning of the code.
    If it be a sham answer, it may be stricken out on motion under a different section of the code, ( § 152.)

    In an action by the payee to recover a note given for the price of goods sold, the defendant may recover his damages occasioned by the non-delivery of the goods by the seller at the time stipulated.

      He is not precluded;, by the fact that he has commenced a suit against the seller, from recovering such damages.
    But he will be compelled to elect, between his own suit and the recoupment claimed ; and if he elect the latter, his suit will be stayed.
    June 7th, 1851.
    The plaintiff sued upon two promissory notes, drawn in his favor by the defendant.
    The defendant in his answer admitted the mating of the notes, bnfc stated that they were given in part payment for marble, which the plaintiff, by a written agreement, engaged to deliver to him at certain times therein specified ; that the defendant is a sculptor, and was employed by the state of Kentucky to execute a piece of statuary, on or before a certain day, under heavy penalties ; that the plaintiff well knew the fact of the defendant’s having been employed by the state of Kentucky, and that the marble was selected by him for the purpose of such statuary; that by reason of the plaintiff’s want of punctuality, he, the defendant, liad sustained great loss and damage, the particulars of which are stated in the answer. And he claimed to recover damages against the claim made on the notes. It also appeared from the answer, that the defendant had commenced an action against the plaintiff for the same damages set up in the answer.
    A motion was now made on behalf of the plaintiff, to strike out the whole of the answer, excepting that part which admitted the making of the notes, as irrelevant and redundant under the one hundred and sixtieth section of the code. Three justices of the court concurred in the decision.

      S, L. If. Barlow, for the plaintiff,

      W. Packard, tor the defendants.

         See Brown v. Jenison, ante, page 732.

   Mason, J.

This motion proceeds on a misapprehension of the meaning of the word “irrelevant,*’ as used in the 160 th section of the code. Matter is irrelevant in a pleading which, lias no bearing on the subject matter of the controversy, and cannot affect the decision of the court. But it is implied that independently of the irrelevant matter, the plaintiff has stated no suffi-eíent canse oí action or the defendant a valid defence, If the complaint does not state a case on which, if uncontradicted, the plaintiff has a right to recover, the defendant must present his objection by demurrer, and not by motion to strike out the complaint as irrelevant, and the same rule is applicable to an answer. If the whole matter of the answer is no defence to the plaintiff’s claim, the answer is insufficient and not irrelevant, in the meaning of the code. The objection in such case is, not that unimportant matter, or matter having no bearing on the controversy, is mixed up with, or stated in addition to that which is material, but that the whole is entirely unavailing, and this objection can only be taken by demurrer, unless the answer is a sham answer, and then by section 152, it may be stricken out on motion. It is true, that under the old chancery system, a plaintiff might except to the answer for impertinence, when he considered that the matter set up was no defence to the case stated by the bill. But that was allowed because a demurrer could not be interposed to an answer, and the plaintiff could in no other way obtain the opinion of the court as to the materiality of such matter, until the court came to a hearing on the pleadings or on the pleadings and proofs, But under the code, a demurrer is allowed to an answer, as well as to a complaint. The plaintiff in this case, therefore, should have demurred to the answer, instead of applying to strike it out as irrelevant.

It must not be inferred, however, that a demurrer would be sustained to this answer. The defendant certainly has a right to recoup in damages, against the plaintiff’s claim, by reason of the marble not having been delivered in proper season; and if be has set forth sufficient facts to entitle him to recover, a demurrer to the answer would be overruled. I fully agree with the rule laid down in Britton v. Turner, (6 New Hampsh, 481,) that a defendant cannot recover and also have a cross action for the same matter. But the mere fact of his having commenced an action for damages, which has not proceeded to trial or judgment, is not necessarily a bar to his setting up the same matter in the answer by way of recoupment. Circumstances may occur after the commencement of such an action, which render it ineffectual, and the setting up of his damages in this way in an answer to a claim for non-payment of the' moneys stipulated in the contract, may be the only effectual mode in which he may be able to obtain compensation for the damages sustained by the failure on the part of, the plaintiff

The affidavit of the defendant on this motion is designed to present such a state of facts. It states that he is fearful lest by reason of the plaintiff’s contemplated removal from the county, he may not be able to collect any sum which he may recover in the action he has instituted for damages. He ought not, therefore, to be prevented from reducing or defeating the plaintiff’s recovery against him in this suit, by way of recoupment of damages.

But he may be put to his election, either to proceed in the suit he has instituted, or to confine himself to his recoupment in the present action. If he elect the former, then he may be prohibited from setting up the same matter in this suit; if the latter, then the proceedings in the former action may be stayed. At any rate, the plaintiff in this action is at liberty to make such a motion on proper affidavits as he may be advised.

The present motion, however, must be denied, but without costs, as the point is new, and involved in some uncertainty.


author: Dues, J.

text:
    Delafield and others v. Wright and Dardin.
    The jurisdiction of this court is defined and limited by the code of procedure.
    In actions against joint debtors, the court has not jurisdiction, unless all are residents of the city, or the summons has been served personally on all.
    The objection may be taken at any stage of the cause when the fact appears, and it may be proved at the. trial, or by affidavits on a proper motion. It is not waived by omitting to set it up by demurrer or answer.
    May 1, 1851.
    This suit was brought to trial before Duek, J., without a jury. The action was on a promissory note made by both defendants. Wright alone appeared and answered. The judge decided against the defence interposed. It was then insisted by Wright that the court had no jurisdiction of the case, and the fact was admitted by the plaintiffs that Dardin was not a resident, and had not been personally served with any process in the suit.

      J. Ant/ion, for the plaintiffs.

      A. L. Robertson and R. Emmet, for the defendant.
   Dues, J.

(With the concurrence of two other justices.) — It was alleged upon the part of the defendant Wright, that no summons had been personally served upon the defendant Dardin, and that he, Dardin, was not at the commencement of this suit nor is he now a resident of this city, and upon this ground it was contended that the court has not acquired jurisdiction of the cause, and that the complaint must therefore be dismissed.

The facts upon which this objection to the jurisdiction of the court was rested were admitted by the counsel for the plaintiffs.

The question which the objection involves has not hitherto been decided by the court at a general term, hut all its judges in their decisions at chambers bare uniformly acted upon the opinion that the power and jurisdiction of the court are defined and limited by the provisions of the code, and consequently that it has no jurisdiction in actions against joint debtors, unless all are residents of the city, or the summons has been served personally upon all, the word “ personally ” being understood in its strict and appropriate sense.

It is this construction of the code that I hold myself bound to follow, and although the objection to the jurisdiction of the court has not been taken by demurrer or answer, yet by the express words of § 148 of the code, this omission is not to he deemed a waiver, and the same force must therefore he allowed to the objection now, as if it bad been taken in the answer, and the facts had been admitted in the reply. As I construe § 148, the objection whether appearing on the pleadings or depending upon extrinsic proof, may now be taken in any stage of the came, and when depending upon extrinsic facts may be supported by affidavits when the proper motion is made at chambers or by evidence when the dismissal of the complaint is asked for upon a trial or bearing.

Nor have I any right to say, that the defendant Wright, by putting in a separate answer, lias elected to treat the action as commenced and prosecuted against himself alone, and, therefore, warranting a separate judgment. He liad a right to put in a separate answer.

And the terms of the answer are not at all different from what they might have been, had Dardin appeared to the action as well as himself. It is entitled against both, and, in the body, the words “ the said defendants ” frequently occur. Had it been otherwise, had it plainly appeared, upon the face of his answer, that he considered himself the sole defendant, I do not think that his error, or that of his counsel, would have precluded him from taking the objection upon which he now insists.

When the proceeding is, in its form, a separate suit against one only of two or more joint debtors, and he neglects to take the objection, by demurrer or answer, of the want of proper parties, I do not at all doubt, that a judgment against him alone may be regularly entered, even where the joint nature of the contract appears upon the face of the complaint; and this position may be considered as fully sustained by the cases to which the counsel for the plaintiffs referred. (Whelpdale’s case, 5 Rep. 119; Roe v. Abbott, Cowper 832.) But all the authorities, including the very cases referred to, show that a several judgment would be certainly erroneous, where all the debtors are parties to the suit, and it is against all that by the very terms of the declaration or complaint, a judgment is demanded.

It was suggested, that, in order to warrant a separate judgment in the present case, the complaint may be amended by striking out the name of Dardin as a defendant; but such an amendment could only be granted upon payment of all the costs of the defendant, and with liberty to him to answer or demur to the amended complaint. It is plain, that the plaintiffs would not be at all benefited by allowing an amendment upon these terms, since the fatal objection of the non-joinder of Dardin would certainly be taken. The complaint must, therefore, be dismissed for want of jurisdiction.


author: Oakley, Oh. J,,

text:
    Waterbury v. Westervelt.
    Where the judge at the trial, reserves for further consideration the questions of law arising upon the trial or verdict, and they are subsequently disposed of at the special term, the successful party is entitled to recover for such term, the fee prescribed by the code for the trial of an issue of law.
    He is so entitled, although the cause was not placed on the calendar, and was heard on the minutes of the clerk, without any case or bill of exceptions,
    Dec. 21, 1850.
    At the trial in October, the jury found specially on certain propositions submitted by the judge. No judgment was given on the verdict. At the December special term, the plaintiff, on notice, applied to the judge holding the term, who rendered judgment on the verdict in favor of the plaintiff. No case or bill of exceptions had been prepared, and the cause was not placed on the calendar of law issues. The motion was made on the verdict as contained in the minutes. The question arose whether the plaintiff can tax for the trial of an issue of law, under the third subdivision of section 307, of the code of procedure.

      Filis, Burrill, & Davison, for the plaintiff

      Brown <& Mathews, for the defendant.
   Oakley, Oh. J,,

with the concurrence of SaNDFobd and Paute, J.J., held that the plaintiff -was entitled to the fee of fifteen dollars allowed by the third subdivision, for the trial of an issue at law.


author: By the Court.

text:
    Megrath and Hasbrouck v. Van Wyck.
    Ad order that the plaintiff pay the defendant’s costs subsequent to an offer to take judgment under section 385 of the code, is not properly any part of the judgment to be entered in the action.
    It may be enforced under the act of 1847, by execution.
    Every order in an action, which passes upon and determines a positive legal right of either party, is appealable, under the second subdivision of section 349 of the code.
    In this and the like sections, the " merits” mean the strict legal rights of the parties., as distinguished from mere questions of practice, which every court regulates for itself, and from matters which depend upon the discretion or favor of the court.
    An order, granting to the defendant costs of the suit, subsequent to an offer under section 385, involves some part of the merits of the action, and is appealable.
    An offer to allow the plaintiff to take judgment, under section 385 of the code, need not contain an offer on the subject of costs to that time. On entering judgment upon the offer, the plaintiff is of course entitled to costs, by section 303.
    (Before Oakley, Ch. J., and Saiídpord and PáINe, J.J.)
    Jan. 11 and 18, 1851.
    This was an appeal from an order at chambers. The suit was brought to recover for oil sold and delivered, for which the plaintiff claimed $259 16. After the defendant appeared, his attorney, on the 24th of October, 1849, served on the plaintiff’s attorney, an offer in writing, that the plaintiff might take judgment against him in the action, for the sum of $238 40. The plaintiff did not accept the offer. The cause was tried in December, 1850, and a verdict rendered for the plaintiff, for $229 71, with interest from May 11th, 1849, which interest, was $7 27. The defendant moved for an order, that the plaintiff pay his costs subsequent to the offer, which order was granted, and the plaintiff thereupon appealed.
    On the appeal being moved, the defendant insisted that the order was not appealable, and the court heard this point argued, before the hearing of the appeal. On its being decided at a subsequent day, that the order was appealable, the merits of the question were heard. Both decisions are reported as if made at the same time.

      Romeyn & MeKinstry, for the plaintiffs.

      Cutler ét Townsend, for the defendant.
   By the Court.

Is this order appealable under section three hundred and forty-nine of the code of procedure ? If it were properly a part of the judgment, it would come up for review on an appeal from the judgment; but we think it is not. The plaintiffs still recover a judgment for their verdict, with the costs accrued at the time of the offer. The defendant's costs directed to be paid by this offer are collectible by force of the order, under the act of 1847. (2 Laws of 1847, page 491; 2 Sand. R. 653.)

Considered as an order simply, it does not fall within the first, third, or fourth classes of orders from which an appeal is allowed. Does it involve the merits of the action or any part thereof? The most sensible definition we have seen on this subject, is that given by Selden, J., in the general term of the supreme court in the seventh district, in the ease of St. John v. West, 4 How. Pr. R. 329, 332. He says the word “ merits ” in these and like sections of the code, should be understood as meaning the strict legal rights of the parties, as contra-distinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court. This will give an appeal from every order which passes upon and determines any positive legal right of either party, and deny it in all other cases. We have no hesitation in adopting this construction, as fully carrying out the intent of tire code; and we may remark, that the commissioners on pleading and practice declared their intention to be to make the actual and final determination of a matter involving a substantial right, the test of an appealable order or judgment. (Report of 1848, p. 19.)

This order involved a substantial legal right, and is therefore the subject of an appeal.

2. The plaintiffs insist the order was wrong, because the defendant’s offer was silent as to costs, and if they had filed it they could have entered judgment only for the sum mentioned in it, which is less than the verdict with the costs to the time of the offer.

We think the plaintiff’s construction of the act is erroneous. The section (three hundred and eighty-five) is silent as to costs, both in the offer and the judgment thereon. The offer is to contain a sum or a relief, for which judgment is to be entered. Then section three hundred and three applies, and gives to the plaintiff upon such judgment, the costs of suit. If the suit were one for specific performance, and the offer were for a judgment of performance simply, there is no doubt on entering such judgment the clerk would be bound to insert in the entry the allowance of costs. And the form of the offer must be the same in an action to recover money only. If it be necessary to insert in the offer the allowance of costs in the latter instance, it must be in the former. We think the statute does not require it in either, and the order appealed from must he affirmed.