author: SaNbfobd, J.,

text:
    La Forge v. Chilson and Williamson.
    When an offer is made by one or more defendants, that the plaintiff may take judgment against them for the sum or to the effect therein specified, pursuant to section three hundred and eighty-five of the code, and the suit is so situated in respect of the other defendants, that the plaintiff, on accepting the offer, may at once enter judgment to the effect offered against all the parties jointly liable with those making the offer ; he must accept it, or he will proceed at his peril as to the future costs in the cause.
    Where one of two defendants, sued on a partnership demand, made such an offer after his co-defendant’s time to answer had expired and he had not appeared, and the plaintiff, on the trial, recovered less than the offer, he was subjected to the costs of the defendant from the time of his offer.
    This court has frequently hold, that under the code, in a strictly legal action against two or more, on a demand which is joint and not joint and several, the plaintiff can enter only a single judgment against all the defendants.
    May 24, 1851.
    Sun' to recover $183,52 and interest, for goods sold to the defendants as partners, between January', 1844, and March, 1841. The defendant, Williamson, did not appear in the suit. Chilson appeared by attorney, and after the time for Williamson to answer had expired, served on the plaintiff’s attorney an offer ia writing signed by his attorney, to allow the plaintiff to take judgment against him for $110, with interest from the day oh which the suit was commenced, and costs. At the same time he served an answer, denying the plaintiff’s claim, except as to $34,50. The cause was referred, and the referee reported that there was due to the plaintiff $110, but allowed him no interest On the trial it appeared that the defendants ceased to be partners in 1845.
    The defendant, Chilson, moved for an order that the plaintiff pay his costs subsequent to the date of the offer to permit judgment to be entered against him,

      A. F. Smith, for the defendant

      E. S. Spencer, for the plaintiff,
   SaNbfobd, J.,

(with the concurrence of the whole court.) The plaintiff contends that the offer of Chilson was nugatory, because not made by both of the defendants: That only one judgment can be entered in the action, and that must be against both defendants or against neither: And that section 385 of the code, provides only for an offer to be made by all the defendants jointly liable in the action.

The section, it is true, speaks of “the defendant” and the offer to be made is that judgment may be taken against “ him” and literally, this would require all the defendants, where there are more than one, to join in an offer to allow judgment against them. We were at first inclined to take this view of the provision, but further consideration has brought us to a different conclusion. The practice introduced by the section in question, is a very beneficial one, and ought to be liberally construed. In a case where all the defendants, save one, have suffered a default, and are no longer in a position to contest the claim, the defendant who alone appears and litigates, may well be regarded as “ the defendant,” for all the purposes of this section. And if he make an offer pursuant to its terms, to allow judgment to be taken against him for a sum not greater than that demanded in the complaint, there is nothing to prevent the plaintiff from at once entering the judgment for that sum with his costs, against all the defendants. He is entitled to it by the offer as against the defendant who has appeared, and by the default to answer, as against the others. If the offer be for a less amount than that claimed, he may relinquish the surplus as against the defaulting defendants. If really entitled to recover no more than the offer, (and it is only on this assumption that it is legally inferrible that he will accept it,) he will not be prejudiced by taking judgment for the amount; because although he has a default against the others, he never can recover judgment against them for more than he can substantiate against the litigating defendant who makes the offer.

What we have said, of course applies only to actions on contracts which are joint and not joint and several, and were formerly designated legal actions. We have frequently held, that, in such cases, the plaintiffs can enter only a single judgment against all the defendants. Consequently, when the offer, under § 385, is made by one of several defendants, it will be entirely unavailing, unless the cause is in such a situation in respect of the other defendants, that the plaintiff, on filing the offer, can immediately take a judgment against all for the amount, or to the effect specified.

The rule that we mean to declare, and which, we think, gives full scope to the beneficial provision of the code according to its evident intent, is this, — that when an offer is made by one or more defendants, under § 385, and the suit is so situated that the plaintiff, upon accepting it, may enter judgment to the effect offered, against all the parties jointly liable with those making the offer, the plaintiff must accept the offer, or proceed, at his peril, as to the future costs in the cause.

In this case, the plaintiff has failed to obtain as favorable a judgment as that offered, and he must pay to Chilson his costs of the suit from the time the offer was made.


source: Caselaw Access Project

author: Sahdford, J.

license: Public Domain

text:
    Martin v. McCormick.
    The allowance in addition to costs, permitted by § 308 of the code, cannot be made after the entry of judgment.
    No allowance can be made under that section, to the prevailing party, on an appeal from a judgment at the special term.
    January 11, 1851.
    IN this case judgment was rendered in favor of the defendant after a trial at the special term. The plaintiff appealed to the general term, wdiere the judgment was affirmed. The defendant now moves for an allowance, in addition to the costs, under the three hundred and eighth section of the code, both in the court below and on the appeal. A similar motion in another suit, for an allowance on a judgment entered at the special term, was argued at the same time.

      8. F. Cowdrey, for the defendant.

      G. A. Halsey, for the plaintiffs.
   Sahdford, J.

(with the concurrence of the Chief Justice and Paine, J.,) decided that, after judgment entered, It was too late for the prevailing party to apply for an allowance under this provision of the code. The amount allowed is to go into the judgment as a part of the “ charges for costs,’” mentioned in § 311.

The provision in § 308 does not apply to judgments rendered on appeal.

Motion denied.

       To the latter proposition is 2 Comst. 570, in the court of appeals, and to both ⅛ a decision of Parker, J., in the supreme court, third district, 5 Howard’s Pr. R. 242.


text:
    Anon.
    In adjusting the plaintiff’s costs, on overruling a demurrer, he is entitled to the fee of seven dollars, “for subsequent proceedings before trial,” and the fee of fifteen dollars for the trial ; but he is not entitled to the twelve dollars given “ for ail proceedings before notice of trial.”
    (Before Oakley, Ch. J., and Sandford and Paine, J.J.)
    Feb. 13, 1851.
    The clerk submitted to the court a question on the adjustment of costs. On overruling a demurrer put in by the defendant, leave was given to him to answer on payment of costs. The plaintiff claimed to tax the following items, besides his disbursements, viz.—
    For all proceedings before notice of trial, - m fcO
    For the subsequent proceedings before the trial,
    For the trial, - CH
   The Couet held, that the plaintiff was not entitled to the fee of twelve dollars given for the proceedings before notice of trial, and that he was entitled to the other two items claimed.


author: Oaklet, Ch. J.

text:
    Gildersleeve v. Halsey.
    The code does not require, that a specification of the items of the costs claimed shall be served with the notice of the application to the clerk to adjust the costs, in order to enter them in the judgment.
    Hereafter, however, this court will require such items to be served, and a rule of eourt to that effect was directed to be entered.
    April 19, 1851.
    MotioN at chambers, decided after consultation with the justices. The facts are stated in the opinion.

      C. A, Davison, for the plaintiff.

      Deo. Hudson,, for the- defendant.
   Oaklet, Ch. J.

The plaintiff took an inquest against the defendant at the present term of this court, in consequence of no affidavit of merits having been filed, upon which he proceeded to enter up judgment and issue execution. The defendant gave notice of a motion to open the inquest, and also to set aside the judgment, on the ground of irregularity. The alleged irregularity was a failure on the part of the plaintiff’s attorney, at the time of serving the notice of the adjustment of costs, to serve a copy of the items which, would be submitted for taxation. The notice given was, that he should apply to the clerk to insert the costs of the plaintiff in the judgment roll, and was unaccompanied by any statement of items. It is contended by the defendant’s attorney, that this is an irregularity which will authorise us to set aside the judgment.

It appeared by the affidavits, on the part of the plaintiff, that the defendant’s attorney appeared before the clerk upon the taxation, and successfully opposed some of the items, but this appearance seemed to have been under a protest upon his part, and we cannot deem it as a waiver of his right, to object to the irregularity, if any existed.

But we are of opinion, however, that the plaintiff -v..- regular, and that the notice he served meets the requirements of the code. If upon the taxation, it should appear to the clerk, that it was proper to afford the opposing party time to investigate the items, it would undoubtedly be in bis power to grant it. In the present case, it does not appear that there are any items which were improperly taxed, or that any objection is in fact made, to the correctness of the taxation. It is undoubtedly advisable in all cases, that a statement of the items should accompany the notice of the application to the clerk. And for this reason, we shall direct a rule to be entered to that effect, in cases which may arise hereafter.

Motion denied.


author: Oaklet, Cii. J.

text:
    C. and G. Belden v. Knowlton, Administratrix, &c.
    The plaintiff in a suit against an executor or administrator, cannot recover costs against the estate or the defendant personally, unless the demand have been presented to such executor, &c.e.,and payment unreasonably resisted or neglected, or the defendant on presentment refused to refer it to the statute.
    The provision of section forty-one of title three of chapter six of the second part of the revised statutes, relative to costs in suits against executors, &c., in legal actions, is continued in full force by the code of procedure.
    May 10, 1851.
    Application by tlie plaintiffs for costs, in a suit against an administratrix. The facts appear in the decision, which was given with the concurrence of all the justices.

      T, C. T. Buckley, for the plaintiffs.

      C. Nagle, for the defendant.
   Oaklet, Cii. J.

This was a suit on a check for $800, dated some days after the day on which it was given. The drawer died the day after it was given, and the suit was brought against his administratrix. She put in an answer, setting up a variety of defences for which there was no pretence, and among others, denying that she ever had any notice that the check was demanded and not paid.

The plaintiffs apply for their costs of the suit, and the question is, whether either the estate of the deceased, or the defendant personally, is liable for costs. On considering the point, we think neither is liable.

The 317th section of the code gives costs in general, for and against executors and administrators, to be paid out of the estate, unless the court charges them on the party personally, for mismanagement or had faith; hut the section also provides, that it shall not he construed to allow costs against executors or administrators, where they are now exempted therefrom by section forty-one of the third title of chapter six of the second part of the revised statutes.

Recurring to the- revised statutes, (2 R. S. 88 to 90,) we find that section 34 permits the executor, &c. at least six months after the grant of letters, to advertise for creditors to present their claims within six months after the notice is first published. When any claim is presented, (§ 38,) if the executor doubt its justice, he may enter into a written agreement to submit it to referees. If the claim be disputed or rejected, and shall not have been referred, the claimant must commence a suit upon it within six months, Ac., or he will be barred from maintaining any action upon it. (§ 38.) If the demand has not been presented within the six months limited by the notice, the creditor will only be entitled to come in against such assets as remain when he commences his suit for its recovery.

Then follows the forty-first section, which first precludes such creditor from recovering any costs, and then provides, that no costs shall be recovered in any suit at law, against any executor or administrator, to be levied of their property, or the property of the deceased, unless it appear that the demand on which it was founded was presented within the time limited by the advertisement before prescribed, and its payment unreasonably resisted or neglected, or that the defendant refused to refer the -same pursuant to the preceding provisions.-

In this case, it does not appear that any notice to the creditors was ever published, or that the plaintiffs ever presented their claim to the defendant. In fact, the suit would seem to have been commenced within six months after the intestate’s death.

The plaintiffs, by having omitted to present their claim, have failed to place themselves in a position in which they could ■claim costs. It must be presented, and payment unreasonably neglected or resisted, in order to bring the case within the exception provided by the forty-first section, and charge the defendant with costs.

Motion denied.


author: Dues, J.

text:
    Braden v. Kakhaiser, and another.
    In the actions mentioned in section three hundred and four of the code, if judgment he rendered for two defendants who have defended by the same attorney, only one bill of costs can be allowed to both defendants.
    May 31, 1851.
    This was an action of assault and battery against two defendants, who appeared by the same attorney, but answered separately. Their defences were in some measure distinct. A verdict was rendered in favor of both, and their attorney presented to the clerk for adjustment, a separate bill of costs in favor of each. The plaintiffs claiming that they were entitled only to a single bill of costs, the question was brought before I)uer, J., at chambers, and decided after consultation with the other justices of the court.

      8. P. Huff, for the plaintiff,

      J. Lux, for the defendants.
   Dues, J.

in announcing the decision, said, the court saw no reason for deviating from the rule which had prevailed in cases like this from a very early period until the code of procedure took effect. It I» true, the code, in terms, makes the costs allowed, rather an indemnity to the prevailing party, than the measure of compensation between attorney and client. But it was intended to adopt fixed rules in respect to costs given in the actions mentioned in section three hundred and four; and this cannot be carried out, if the circumstances of separate answers when put in by the same attorney be allowed to confer the right to separate costs. A full bill to each defendant in such a case, will be certain in most instances, to give to both more than an indemnity; and we think it is better to adhere to the practice adopted under the old system, that only a single bill of costs can be taxed for all the defendants who appear by the same attorney.


author: Dijeb, J.

text:
    Moore v. Westervelt, Sheriff, &c.
    fin1- v i 4 -)i tot -* I A I -, i ■!< nl»K < ■■'t- r ] ’ ’ )u <>ft ⅜ rs, who ⅛⅜.. 1 n - ¡Kin 'jhi ilwa id n-p .1 oí 4» ' win < 4 j. t , a**» repealed b\ ‘5i <. i 1 * pun . 4 lit
    F:v t’ ,ti ü 41. w an . . i»’- u!t a m 4'ji'' imviwl. <r w 1 it,, t wk in extend r , ” < i , - ¡i - w , ! r ! t i "> ’ \> >ii u r ⅜ U 11 .11 ¡. 1. v ( dm
    r!s « t . , v I*, «. n t , i . i . ‘ ⅜. < * * v4 ieh the t**i > < Ft I i - 1 ‘ M (. 1 fP U". It I» I hi" * h ’ t
    if h - i-- >«,< p t|u 1 ib ftp! . - t'ut h»-* -¡cli. Pfifl a. *. vvnj. to the value of his services.
    May, 1851.
    The facts in this case appear in the decision, which was made at the general term, with the concurrence of all the justices of the court.

      II P. Hastings, for the plaintiff.

      W, B. Blunt, for the defendant.
   By the Cottet.

Dijeb, J.

This is an appeal from an order made at chambers allowing to the defendant who has obtained, a verdict, what are usually, but improperly termed double costs, and the question to be determined is, whether those sections in the revised statutes by which, in cases like the present, such costs are given to the defendant, are still in force, or have been superseded or repealed by the provisions of the code. (2 R. S. 617, § 24, 25.

It is much to be regretted that the framers of the code failed to annex to their labors, a general repealing statute enumerating the acts and parts of acts that were meant to be abrogated. Many of thé difficulties that have arisen in the construction of the code, and those that have most perplexed and divided the minds of judges, must he ascribed to this omission, and of this the question now before ns is a striking example. Two of the judges of the superior court, Justices Sill and Welles, (4 How. Pr. R. 263, 283,) have decided that double costs are still recoverable, while Mr. Justice Parker, and the court of common pleas in this city, have held that the statutory provisions from which alone the right to claim such costs was derived are wholly repealed, (4 ibid. 239, 5 ibid. p.-MS. opinion of Judge Woodruff,) and our own reflections, founded upon an attentive examination of all those provisions in the code that have a bearing upon the question, have led us to the same conclusion.

It is said that the code has only repealed those statutory pro visions in relation to costs which regulated the costs and fees of attorneys, solicitors and counsel, as against their client-, and that as double costs are expressly declared to belong to the defendants to whom they are awarded, and are thus distinguished from those which their attorneys, &c., are entitled to recover for their own services, it necessarily follows that they are not affected by the repeal. "We shall not deny that there would be much force in these observations, if the costs that are given by the code, and which it is alleged may be doubled, were merely a substitute for those that were formerly allowed, and were still the costs that the attorney is entitled to demand from his client, and when received from the opposite party, to retain for his services; but as the case happens to be directly the reverse, the argument that the observations we have stated have been supposed to furnish, it appears to us wholly tails. Costs, as they now exist, are in no case a measure of the compensation to which the attorney is entitled.

They do not define and limit the sum that he may justly claim for his services. His compensation, where there is no express agreement, is left to depend upon the agreement that the law will imply, and the only agreement that the law can imply is, that the sum to be paid, shall be proportioned to the value of the services performed, and it is manifest that the sum which a court and jury, in the exercise of a reasonable discretion may allow, may be greater or less than the amounts of the costs that are given by the code. Such, we conceive, is the necessary construction of section 308.

Hence, the question whether the code has abolished double costs is not to be disposed of by saying that the provisions of the code have no reference to costs that belong to a party in the suit, for in reality it is to such costs that they relate, and to such alone. Costs, as regulated by the code, are, given exclusively to the party, plaintiff or defendant, who prevails in the suit, and they belong to him exactly in the same sense in which double costs belonged to a defendant under the revised statutes. The real question, therefore, is whether the provisions in the code in relation to costs, were designed to embrace the whole subject of which they treat, since if they were, double costs, although not in terms abolished, are so, by a necessary implication. The sections in the statute by which they are given are certainly repealed, if the code must be construed as meaning that no other or greater costs shall in any case be recovered or allowed than those which it directs or authorizes to be gi ven, and such, we are persuaded, is its reasonable and true interpretation. We are convinced, that had the framers of the code meant to continue in torce the existing statutory provision in relation to double costs, they would not have failed to see that it was necessary to embody and re-enact the sections in which they are contained, and that their intention and that of the legislature to repeal these sections is sufficiently manifested by their actual omission.

It has, indeed, been insisted, that this is a construction which we have no right to adopt. The code, it is said, has in effect declared that all statutory provisions not inconsistent with its own, shall remain in force. (Code, § 468, 471.) Hence, as the provisions relative to double costs may be reconciled with those of the code, it follows that we are bound to enforce them. This reasoning is specious, but the sophism which it involves is readily detected. It consists in giving to the term “inconsistent” a very false interpretation, by limiting it to the cases in which there is a positive contradiction in terms, a direct and literal repug-nancy. But such is not its meaning. A prior law is inconsistent with a subsequent, when, if suffered to remain in force, it would defeat or frustrate in any degree the object and intent of the latter, and this it may do, even when the terms of the laws are perfectly consistent and imply no contradiction that would prevent the provisions in both from being carried into effect. The declaration in the code, that all statutory provisions not inconsistent with its own are repealed, was quite unnecessary. It is only a special application of the general maxim, that “ Leges posteriores priores contrarias ábrogant,” and must receive the same interpretation. It would be unreasonable to suppose that it was meant to alter, in any degree, the sound rules of construction by which courts of justice in the interpretation of statutes have constantly been governed. The intent of the legislature that a particular act should contain the whole statutory law on the subjects of which it treats, may be declared in terms, or be deduced from the nature of its provisions and the absurd or unreasonable consequences that would follow a different construction, But where this intent is certain, whether expressed in words or collected by reasoning, its necessary effect is to repeal, as inconsistent, all prior statutes on the same subject. We venture to affirm, that there is scarcely a chapter or title in the code, in the construction of which this principle must not be followed ; and to select a single case, it is by this principle that we have been governed in determining the extent of our own powers. The code declares that the jurisdiction of this court shall extend to certain cases, which it proceeds to enumerate, without any positive or negative words confining our jurisdiction to those cases, but as the enumeration was evidently meant to be complete, we have construed it as defining and limiting our powers, and consequently, as repealing all prior statutes by which a different or larger jurisdiction was given.

The title “ of costs” in the code means costs in civil suits, and there is no exception, either in the heading of the title, or in its provisions, of particular suits or particular cases. It corresponds, in its general design, with title 1, of chapter X part 3d of the revised statutes, which is headed “ of the cases in which costs may he recovered and we know no reason why its provisions must not receive the same interpretation ; that is, as intended to embrace all the cases in which costs may be recovered or allowed. Mr. Justice Woodruff, in a MS. opinion, with a copy of which we have been furnished, by a careful analysis of the two statutes, title one in the revised statutes, and ten in the code, has clearly shown that the provisions in the latter are throughout substituted for those of the former, and we agree with him that while every other section in title one is plainly superseded, it would be unreasonable to believe that §§ 24 and 25 were meant to be continued in force. We agree with him that the substitution was meant to be and is complete.

An objection, however, to this construction not hitherto noticed, must now be stated. It has much apparent force, yet when examined supplies new reasons in support of the conclusions that we adopt. The statutory provisions in relation to double costs, it is truly said, are founded upon reasons of public policy, which we ought not to believe, unless upon the strongest evidence, that the legislature meant to disregard. The object of these provisions is to encourage public officers in the faithful discharge of their duties, by imposing a penalty upon those, who without just cause, prosecute them for their official acts. Its design is to protect the officer against groundless and vexatious suits, and this protection, unless the language of the code is plain and imperative, ought not to be withdrawn. To all this we entirely assent, and the reply is, that this reasonable protection is not withdrawn, but in all the cases in which it ought to be given, is more effectually secured by the provisions of the code than by those of the statute. It is seemed by the duty which is now imposed upon the judges, of making an extraordinary allowance to the party who prevails in the suit “ in every case in which the prosecution or defence has been unreasonably or unfairly conducted,” (Code, § 308.) It is not a narrow and literal construction that we give to these words. We hold that they apply to every suit which is groundless in its origin and vexatious in its purpose ; since every suit which is unreasonable and unfair in its commencement, must be so in every subsequent step of its progress, and unless it is at once abandoned, it is “ a prosecution unreasonably and unfairly conducted.”

It is true, that under the code it is only in special cases that an additional allowance can be made to a public officer, who is a defendant in the suit, whereas, under the statute, he is entitled to double costs, in every ease in which the plaintiff fails to succeed, to whatever cause his ill success may be owing, and however reasonable the grounds upon which the suit was commenced. But this distinction, so far from being an objection, is an additional and very strong reason for holding that the provisions of the code have superseded those of the statute. If more limited in their application, they are more equitable when applied. They give to the officer all the protection that he can justly claim, and they impose no penalty, when no wrong has been committed and no punishment is due.

Upon the other hand, if we have rightly interpreted the provisions in § 308 of the code, as to the extent of their application, let us consider what, in some cases, must be the necessary consequence of holding that they are not substituted for those of the statute. Where a suit against a public officer, in the opinion of the judge by whom it is tried, is unreasonable or unfair in its origin or conduct, he is bound to make to the defendant the additional allowance which the code has authorised. If he is satisfied that the wrong which was meant to be restrained has been committed, it is his duty to impose the penalty, and to this penalty, if the statutory provisions are still in force, that of “ double costs” must be added. Nor is this all; the additional allowance is plainly a part of the “ sum of charges for costs,” which are to be adjusted by the clerk, under § 311 of the code. The entire allowance is, therefore, not merely to be added to doable costs, bat, in the sense of the statute, is itself to be doubled. It is manifest that such an aggravation of the penalty that double costs were meant to provide, would in all cases be unjust, and in many oppressive; and we therefore find it impossible to believe that it was contemplated by the framers of the code, or by the legislature. Yet if this consequence was not intended, double costs were meant to be abolished, and we rest with satisfaction in the conclusion that they are abolished.

The order allowing them to the plaintiffs is therefore reversed, bat without costs.


author: Robertson, Ch. J.

text:
    Garret P. Berger, plaintiff and appellant, vs. Lucien P. Dubernet et al. defendants and respondents.
    1. A party is not precluded from appealing upon the judgment roll alone, and raising such questions as appear on its face, that might formerly have been raised on writ of error.
    2. Errors on the trial are of course excluded, on such an appeal, because there is nothing containing the proceedings on the trial entered on the record.
    3. The only effect of omitting to make a case, is to compel the party to argue his appeal on the judgment alone.
    (Before Robertson, ch. J., and Barbour and Jones, JJ.)
    Heard June 3, 1866;
    decided April 1, 1867.

      Motion to dismiss an appeal for neglect to make a case in time.

      H. H. Morange, for the defendant, respondent.

      Emerson, Groodrieh Knowlton, for the plaintiffs, appellants.
   Robertson, Ch. J.

I do not. consider it necessary to consider the merits of the appeal, as they are not at all involved in the motion, which is simply one to dismiss an appeal for neglect to make a case. The thirty-fifth general court rule, .provides that if no case be made within the time required by the previous rule, (thirty-fourth,) the party who desires to move for a new trial, or to review a trial, shall be deemed to have waived Ms right to make sueh ease. Enumerated motions are declared by the fortieth general rule to be motions arising on special verdict, issues of law, cases, exceptions, appeals from orders sustaining or overruling demurrers, or appeals from an inferior court, and appeals under section 348 of the Code, which are appeals from the special to the general term of the same court; and by the forty-second general rule the papers required to be furnished on such motions are a copy of the pleadings, when the question arises on them, a copy of the special verdict, return, or other paper on which the ques-. tion arises.- By the forty-third general rule, the 11 papers ” required to he furnished to the court, on appeals from the special to the general term, are merely a copy of the judgment roll, together with a case stating the time pf the commencement of the suit, the service of the respective pleadings, the names of the original parties, the changes of parties, and any opinion given by the court below. In case of neglect, it is true, to serve on the opposite party a certain number of copies of such “papers/1 a certain length of time before the first day of term, the latter may move to strike the cause from the calendar, and for judgment in his favor. I do not understand from all these provisions, that a party is precluded from appealing upon the judgment roll alone and raising" any such questions as appear on its face, as might formerly have heen raised on writ of error. (Hastings v. McKinley, 3 Code R. 10.) Errors on the trial are of course excluded, because there is no case containing proceedings on such trial entered on the record. It seems to be settled that .the only effect of omitting to make a case, is to leave a party to argue his appeal on the judgment alone. (Robinson v. Hudson River Railroad Company, 3 Abb. Pr. 115. Conolly v. Conolly, 16 How. Pr. 224.) The motion is not founded upon any omission to serve the papers on which the appeal might be argued. It must therefore be denied, with ten dollars costs.

Jones, J. concurred.


text:
    John R. Currie, plaintiff, vs. Edward P. Cowles, defendant.
    1. The Code of Procedure gives to the decision of a referee to whom all the issues are referred, the same effect as to that of a single judge. It orders judgment to be entered upon it in the same manner, which is done by the clerk. The entry of the judgment being therefore merely clerical, no opposition can properly be made to it; hence it maybe entered without notice, or leave of the court.
    2. It is improper for a referee to deliver two documents, each of which purports to be the original of his report, to both parties, even if they are duplicates; as it leads to confusion; but if a paper annexed to the judgment roll as the referee’s report, be that which was first delivered by the referee, and the two papers are substantially the same, it forms no ground for setting aside the judgment,

      3. It is no ground of objection to a judgment, that it does not expressly adopt the findings of the referee upon the facts and law as the court’s. The Code declares the referee’s findings to be those of the court, and there is, therefore, no necessity to reiterate them. Assuming the referee to take the place of a jury, it never was deemed necessary nor even customary to repeat, in the judgment of the court, the findings of the jury in their verdict upon particular issues.
    4. Even if a referee’s report, which merely says, that the plaintiff is entitled to recover, is to he construed as only advisory, so as to appear to require a ratification hy the court, instead of imperatively adjudging that he do recover a specified sum of money, it may be corrected by amendment, where his intention is plain.
    5. Whether the report of a referee who undertakes to give a contingent judgment for one half of his fees to the party who shall pay the whole, be or he not void pro trnto, the judgment itself should be entered according to the referee’s decision, and independently of any subsequent acts of the parties in pais.

    (Before Robertson, Ch. J. at special term,
    April —, 1867.)
    Motion to vacate a judgment.

      J. 0. DimmicJc, for the defendant.

      L. It. Marsh, for the plaintiff.
   Robertson, Ch. J.

This is a motion to vacate, for irregularity, a judgment entered upon the report of a referee, to whom all the issues in the action were referred, and for other relief.

The irregularities complained of are, (1.) That the judgment was entered without leave of the court. (2.) That the judgment roll does not embrace the report of the referee. (3.) That the judgment does not include an adjudication specifically upon the questions of law and fact determined by the referee, in his report. (4.) That it is for a larger amount than the report authorizes. (5.) That only one half of the referee’s fees are deducted from the amount awarded to the plaintiff.

In reference to the first objection, of want of notice of entering the judgment, it would seem that the Code of Procedure pays the same respect to the decision of a referee to whom all the issues are referred, as it does to that of a single judge, as it orders judgment to be entered upon it in the same manner, (§ 272,) which is by the clerk,.(§ 267.) The entry of the judgment being therefore merely clerical, no opposition can justly be made to it, and such is the current of authority. (Renoit v. Harris, 1 Code R. 125. Griffing v. Slate, 5 How. 205. McMahon v. Allen, 7 Abb. 1. Bihin v. Bihin, 17 id. 19, 27.) This objection, therefore, forms no ground for vacating it.

As to the second objection, it is difficult to determine which document the referee meant to be his report, that delivered to the plaintiff or that delivered to the defendant. It certainly was improper to deliver both, even if they were duplicates, as it leads to the confusion which has been produced in this case. The evidence before me, as it stands, seems to imply that the paper annexed to the judgment roll was first delivered by the referee, and as they are substantially the same, save under neither could the plaintiff recover the costs of the former reference, that forms no ground for setting aside the judgment. Indeed no prejudice can ensue to the defendant from taking it in preference. The right to recover half of the referee’s fees by the party who has paid the whole still remains. The referee only'prejudiced himself by delivering the report before his fees were paid.

The next objection is that the judgment does not adopt the findings of the referee upon the facts and law, as the court’s; at least that is what the third one amounts to. This is entirely unnecessary for any purpose; the Code has declared the referee’s findings to be those of the court, and there is no necessity to reiterate them; and assuming the referee to take the place of a jury, it never was customary or deemed necessary to repeat in the judgment of the court, the findings of the jury in their verdict upon particular issues. So far as any thing prejudicial to the defendant’s character was contained in the complaint and put in issue by the answer, the referee could not come to the conclusion he did without passing upon it, and he actually did so. There is undoubtedly a defect in the referee’s report in not actually and imperatively adjudging that the plaintiff do recover a sum of money, instead of saying in an advisory manner that he is entitled to recover, so as to appear to require a ratification by the court. The only judgment required to be afterwards entered, was that entered in the judgment book by the clerk, (Code, §§ 279, 280,) who is bound (simply as a clerical duty) to follow the adjudicating part of the report, without any ulterior direction. (Code, §§ 272,277.) The defendant may be entitled to an express adjudication in form, therefore, upon so much of the plaintiff’s claim as seeks to charge him with the value of the real estate claimed to have been bought by him in a fiduciary capacity for the plaintiff. And as the referee’s report cannot well be altered in that respect, his error or omission may be corrected by inserting in the judgment an adjudication, that as regards the claim for such real estate, or the value or proceeds thereof, the complaint be dismissed, without costs.

The referee also undertook to give a contingent judgment in this case for one half of his fees to the party who should pay the whole. It is not now necessary to decide whether such a shifting judgment can be rendered, or whether his report may not be void pro tanto. But the judgment itself should have been entered according to the referee’s decision independently of any subsequent acts of the parties in pais. The judgment as to such fees was not to be suspended until it was determined who should pay them. But the party who paid them was to become by virtue of such judgment itself, if legal, entitled to recover one half from the other party. The plaintiff, it is said, has given credit for one half the fees, in his judgment; the defendant cannot therefore complain, that the judgment is for less than it ought to be. The defendant is of course at liberty to pursue his remedy for the amount overpaid by him, as he may be advised. A change of the form of the judgment would not be proper, except that as the same defect exists in the referee’s report, as before mentioned, a clause may be inserted therein, if the defendant desires it, awarding judgment for a sum equal to one half of the referee’s fees, to such of the parties as may pay the whole, against the other.

The judgment is for a less sum than the plaintiff was entitled to recover. For what reason the referee has made it so, does not appear by it. If the defendant should undertake to' collect one half of the referee’s fees, or upon a motion for an offset, the amount really due may be adjusted. An order must be entered in pursuance of the foregoing views, without costs to either party.


author: By the Court, Jones, J.

text:
    Mary T. Bean, plaintiff and appellant, vs. Samuel M. Pettengill, defendants and respondents.
    1. This court, as a court of equity, ought not to enjoin, by order, lessors from taking summary proceedings to dispossess their lessees, pursuant to a covenant contained in the lease of the premises in question, whereby the latter agreed to surrender possession upon ten days’ notice, at any time before the end of the term, and a notice given in pursuance thereof, even if such covenant have been waived by parol. Although, under such a covenant, the refusal of the lessees to remove may have been a mere breach of it, and a notice pursuant to it could not terminate the lease, or if it could otherwise have done so, .the parol agreement prevented its effect, and therefore the officer before whom proceedings were taken would have no jurisdiction, the remedy at law was ample and perfect, by writ of prohibition.

      2. This court should not, by order, enjoin the defendants, who were lessors, generally from interfering with the possession of the plaintiff, where there is no allegation in any of the moving papers that the defendants threatened or intended so to interfere, otherwise than by such summary proceedings.
    3. JEstcrppeU in pais are based simply upon certain rules of evidence, whereby,, in consequence of certain matters having occurred, a party is precluded from availing himself of certain facts, or a certain claim or defense, which he would be otherwise entitled to rely upon; and they are the same in actions at law and suits in equity.
    4. The mere apprehension, by a plaintiff, of the defendants being about to commit certain acts, without proof of circumstances prima facie, at least, warranting it, does not justify this court in making an order enjoining them from committing such acts.
    (Before Barbour, Garvin and Jones, JJ.)
    Heard December 6, 1866;
    decided May 17, 1867.
    This was an appeal from an order refusing to enjoin the defendants from taking summary proceedings to dispossess the plaintiff from certain premises.
    The complaint sets forth a lease, whereby the defendants demised to the plaintiff certain premises for a term, to expire May 1, 1867. The lease contained a covenant by the plaintiff to vacate them at any time, upon receiving ten days’ notice from the defendants to do so, at their option; and after the expiration of ten days after such notice to remove, to quit and surrender the premises in as good state and condition as the reasonable use and wear thereof would permit, and not to use said premises for any other purpose than as a private residence. The complaint then alleged, that about August 22, 1866, the plaintiff was promised by one of the defendants that they would waive the last mentioned covenants of the lease, and would not enforce the same during the continuance of the year, or until the 1st of April, 1867; and furthermore agreed with the plaintiff that she might continue to occupy the premises during the continuance of the year, or until the 1st day of April, 1867. It further alleged, that the plaintiff, at the time this promise and agreement was made to and with her, informed the defendants that her object in obtaining such promise and agreement was to secure another house in case they intended to enforce such covenant, and that she contemplated making repairs and improvements on the premises, in case she could continue therein; that after receiving such promise she made extensive improvements, and otherwise fitted up said premises for her convenience, at an expense to her of $5000; but that the defendants, notwithstanding such promise and agreement, had given her the ten days’ notice provided for by the lease, and commenced summary proceedings before the city judge of the city of Yew York, to dispossess her; that the defendants, in their affidavit made to initiate such proceedings, claimed, that the term granted by said lease had expired, by reason of ten days having elapsed since the giving of such notice; that said city judge, on motion made by the plaintiff before him to dismiss said summary proceedings, on the ground that he had no jurisdiction thereof, refused to dismiss them, deciding that he had jurisdiction, and adjourned the proceedings to October 8, 1866, for trial; that the defendants threatened to go on with such summary proceedings, and claimed that the said promise and agreement made by them were void at law; that, as the plaintiff is advised, the said promise and agreement cannot be enforced in such summary proceedings, inasmuch as the city judge has no jurisdiction in equity, and she has no remedy except in a court of equity; that, unless the defendants were restrained, she feared they would succeed'in dispossessing her, thereby inflicting irreparable injury, in the loss of benefits and advantages to be obtained from her expenditure in repairs and improvements upon said premises, and otherwise.
    The only relief demanded was an injunction order against the defendants, restraining them from prosecuting the proceedings before the city judge, or in any manner interfering with the possession of said premises by the. .plaintiff, on the ground that the term demised by said lease had expired, or that the plaintiff was holding over the said possession.
    On this complaint, duly verified, an order was granted, requiring the defendants to show cause, at a special term, why an injunction should not issue, as prayed for, and a temporary stay was issued.
    ■ The defendants appeared, and showed cause, and read their answer, wherein they, among other things, expressly denied that the plaintiff had made any improvements or repairs whatever on said premises. The judge, at special term, denied the motion for an injunction order, and vacated the temporary stay. From the order on such motion the present appeal was taken.

      E. N. Dodge, for the appellant.

      A. G. Hull, for the respondent.
   By the Court, Jones, J.

It is evident, from the plaintiff’s complaint, that her claim to an injunction order, rests on some one, or all, of the three following grounds :

1. That no steps taken by the landlord, under the ten day clause of the lease, can have the effect of terminating the term demised; and that the refusal to remove, pursuant to such notice, is a mere breach of covenant, for which summary proceedings will not lie, and, therefore, that the landlord’s affidavit, presented to the city judge, shows, on its face, a want of jurisdiction.

2. That, by virtue of the parol agreement, (if proved, and is founded on sufficient consideration,) the term continued; and, therefore, the city judge has no jurisdiction.

3. That there being no consideration for such parol agreement, it can only be enforced in equity on the ground, that the plaintiff) relying on the promise, has made an outlay of large sums upon the premises, which she will wholly lose, if the agreement be not fulfilled.

Assuming the propositions of law contained in the first two grounds to be correct, still equity will not, on such grounds, interfere by injunction, inasmuch as the plaintiff has an adequate and perfect remedy at law, by writ of prohibition, to prevent the city judge from exceeding his authority.

The only principle suggested by the appellant’s counsel upon which the parol agreement, being without con-' sideration, can be made to operate for the benefit of the plaintiff, is that appertaining to estoppels in pais. He, however, is in error in supposing that the principle of an estoppel in pais can be applied only in equity. The principles,! ' on which the doctrine of estoppels in pais is based, arel simply rules of evidence, by which, in consequence ofl certain matters having taken place, a party is precluded! from proving certain facts, or relying on a certain claim/ or defense, which he otherwise would be entitled to prove, or to rely on. These rules are the same in actions at law and suits in equity.

Thus much as regards the injunction against proceedings before the city judge.

As regards the prayer for an injunction order against the defendants, in any way interfering with the possession of the plaintiff, there is nothing to warrant such order. There is no allegation in the complaint, that the defendants threaten or intend to interfere with such possession, otherwise than by the proceeding before the city judge; and there is nothing in any of the papers indicating any such intention on their part. The bare allegation of a fear, that the defendants are about to do some act, without any allegation of some facts or circumstances which, prima facie, justify such fear, will not authorize the making of an injunction order to restrain the commission of such apprehended acts.

There being, thus, no ground for equitable interference shown by the complaint, the order appealed froin must be affirmed; no costs of appeal to either party.

Ordered accordingly.


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

text:
    Henry J. Yates et al. plaintiffs and appellants, vs. Joseph E. Horanson and, Morris Jacobson, defendants and respondents.
    - 1. Where a judgment against two defendants was entered, upon an appearance . and offer to allow judgment, signed by an attorney as “ defendants’ attorney,” the summons, complaint, appearance, offer, its acceptance, proof of service and judgment were all of the same date, and the attorneys for the plaintiffs occupied the same office with the attorney appearing for the defendants, upon an affidavit of one of the defendants, denying that he was ever indebted to the plaintiffs, or a partner of the other defendant; that he was ever served with process in the action; or ever authorized the attorney who appeared, or any one else, to appear for him; ever saw such attorney or heard of Mm; or ever knew of the existence of the judgment, until the sheriff levied on his goods, two years after the judgment was entered; the plaintiffs having made no attempt previously to collect it, although the defendant making such affidavit, did business in the same city with them, all the time, and was fully responsible; Seld that these facts, uncontradicted and unexplained, warranted the setting aside and vacating . of the judgment and execution, as to such defendant.
    2. Seld, also, that if there was eolhtsion in the entry of the judgment, any question as to the authority or responsibility of the person who appeared for the defendants was wholly immaterial.
    (Before Robertson, Ch. J. and Garvin, J.)
    Heard November 12, 1866 ;
    decided May —, 1867.
    Appeal from an order made at a special term, vacating and setting aside a judgment as to the defendant Jacobson, and the execution issued thereon and the levy upon his property.
    The plaintiffs recovered a judgment against the defendant Jacobson and one David E. Horanson, for $973.08, on the 6th of December, 1864. The judgment was entered upon an appearance and offer to allow judgment, made by one Alfred Vanderwerker, who signed himself “defendants’ attorney.” The summons and complaint, appearance, offer, its acceptance, proof of service, and the judgment, were all of the same date. The attorneys for the plaintiffs and Vanderwerker occupied the same offices. The defendant J acobson moved to set aside the judgment, so far as it affected him, stating, in an affidavit, that he never purchased any goods from the plaintiffs, nor owed them any money; that he never was a partner with the defendant Horanson ; was never served with process in said action; never authorized Vanderwerker, or any other person to appear for him in said action; never saw or heard of Vanderwerker; and never knew of the existence of a judgment against him until the sheriff levied on his goods, in May, 1866. The plaintiffs took no action upon such judgments for over two years, although all the time the defendant lived and did business in the city of Hew York, where the plaintiffs resided, and was abundantly able to pay the judgment. •
    Ho affidavit was produced by the plaintiffs from Vanderwerker, or any attempt made to prove his authority to appear for the defendant Jacobson.

      Geo. B. Thompson, for the appellants, plaintiffs.
    I. The authority of the attorney to appear is to be presumed, (6 How. U. S. Rep. 163;) and it is not shown that he had not authorty so to do. In order to avoid the effect of his appearance, it would have been necessary to show that it was collusive. His appearance on the record renders the judgment regular. (Bridenbecker v. Mason, 16 How. Pr. 203. Binney v. Le Gal, 19 Barb. 592.)
    1. In a suit, even on a domestic judgment, a defendant, it has been held, cannot plead his ignorance of the original action, nor the attorney’s want of authority to appear for him. (St. Albans v. Bush, 4 Verm. Rep. 58.)
    2. It is never done unless it is shown that the attorney is insolvent. (Meacham v. Dudley, 6 Wend. 514. Campbell v. Bristol, 19 id. 101. See Denton v. Noyes, 6 John. 296.)
    H. There is a very great preponderance of proof showing the defendants to have been partners, and it is established by the undenied acts of Jacobson himself. Jacobson, it is true, swears he was not a partner with Horanson, but he does not attempt to explain the relations existing between them, and swears merely to a conclusion of his own.
    IH. At any rate, the order is certainly erroneous, in that it entirely vacates the levy made by the plaintiffs, thus depriving them of the power to collect the judgment should it be sustained on the merits.

      John E. Burrill, for the respondents.
    I. Vanderwerker, who confessed the judgment on behalf of the defendants, was not the attorney of Jacobson, and had no right to appear for him. This is positively sworn to by Jacobson, and no affidavit has been introduced, from Vanderwerker or any one else, to disprove his statements, or to show any appointment of Vanderwerker as attorney.
    H. It is not proven or alleged that Vanderwerker had any authority from Horanson to appear for him; much less that he was authorized by Horanson to appear for Jacobson.
    I. It is not pretended that Horanson had any express authority.

      2. Even had they been partners, Horanson had no power to confess a judgment against his copartner, and especially after the dissolution of the alleged partnership. (Crane v. French, 1 Wend. 311, and cases cited. Sterne v. Bentley, 3 How. Pr. 331. Blodget v. Conklin, 9 How. 444.)
    3. Jacobson denies that he and Horanson were ever in partnership, and this fact, if disputed, he is entitled to have tried as one of the issues in this action.
    HI. The facts of the case warrant the conclusion that the judgment was obtained by fraud and collusion.
    1. There was no affidavit from Vanderwerker or Horanson.
    2. Vanderwerker occupied the same office with the plaintiffs’ attorneys.
    3. Jacobson was at the time and ever since has been able to pay, and openly residing and doing business in this city.
    4. Ho effort was made to serve him with process, and he had no notice of the suit.
    5. The mode of obtaining judgment by a confession was unusual.
    6. The summons, complaint, appearance, offer and acceptance, all bear the same date.
    7. Ho effort was made to collect the judgment for more than two years.
    IV. The opposing affidavits did not touch the point in issue on the motion, but sought to establish a partnership between Jacbbson and Horanson. This question of partnership will be litigated in the action, and if the plaintiffs desire to have it tested, they can obtain their object by serving the summons and having the action tried in the usual way.
    V. On the affidavits the judge at special term found, as matter of fact, that the attorney who appeared for Jacobson had no authority to act for him, and his finding should be conclusive, on this appeal. The appearance being unauthorized, and the defendant not having in fact been served with process, the court had no jurisdiction over Jacobson, and the judgment is invalid. (Porter v. Bronson, 19 Abb. 237, and cases cited. Bean v. Mather, 1 Daly C. P. 441, and cases cited. Crane v. French, 1 Wend. 311, and cases cited.)

   By the Court, Robertson, Ch. J.

If there was .collusion in entering up the judgment in question against the defendants, the question of the authority or responsibility of the person who appeared for them is wholly immaterial. In the absence of any explanation of the circumstances in the case tending to establish such collusion, there is no reason for interfering with the finding of the judge at special term in regard to it. Those circumstances were the joint occupation of the same office with the plaintiffs’ attorneys by such person; the cotemporaneousness of the summons, complaint, appearance, offer and acceptance; the want of any acquaintance with such person, by the defendant Jacobson; and the absence of any attempt to collect such judgment for two years, although such defendant did business in this city all the time and was fully responsible. They are neither contradicted nor explained. The court at special term was therefore warranted in making the order in question. (See Denton v. Noyes, 6 John. 296; Blodget v. Conklin, 9 How. Pr. 442.)

The order appealed from must be affirmed; with costs.


author: By the Court, Monell, J. McCunn, J.

text:
    Edward Foote et al. plaintiffs and respondents, vs. William S. Roberts, defendant and appellant.
    1. The court, in lank, will not weigh the evidence for the purpose of ascertaining whether the justice by whom the action was tried came to a correct conclusion; nor will it disturb a judgment, when there is any evidence to sustain it, even if, upon examination, it might think a different conclusion should have been reached. It is well settled that a finding upon conflicting evidence will not be disturbed by an appellate court. McCura, J. dissented.
    2. It is not a valid objection, that a part of the plaintiffs’ claim is not embraced by the pleadings, where the justice finds that such claim was sustained by the proof. The court, at general term, has the right, either to treat the complaint as amended in such particulars, as the court at special term would have allowed, or to conform the pleadings to the facts as found by the justice.
    (Before Monell, Garvin and McCunn, JJ.)
    Heard February 12, 1867;
    decided October 21, 1867.
    Appeal by the defendant from a judgment entered upon a decision of the chief justice, by whom this action was tried, without a jury.
    There were three causes of action stated in the complaint, as follows:

      First. That the plaintiffs, at the request of the defendant, undertook to roll into gun barrels, straighten, cone-seat, splice and anneal, five tons of iron, containing about eleven hundred skelps; to roll and cone-seat each of such skelps for $1, anneal the same for six cents per barrel, and splice and straighten such of them as were found to require to be straightened or spliced, for fifteen cents for each barrel spliced, and one cent for each barrel straightened, which sums the defendant agreed to pay; that the plaintiffs agreed with the Trenton Iron Company to do such work at such prices; that the defendant refused to pay such sums, and the plaintiffs were sued therefor, and were obliged to pay, with costs and legal expenses, a certain sum ($1584.52,) which, with interest, the plaintiffs claimed to recover.

      Second: That the defendant gave to the plaintiffs an order to import for him fifty tons of gun iron, at twelve "and a half cents per pound, which order the plaintiffs accepted, and under which they sold and delivered to the defendant a certain number of (286) bundles of gun iron, of a certain aggregate weight (29,859 pounds.) That 317 pounds were returned.
    Upon this cause of action the plaintiffs claimed to recover a certain sum ($6284.21) with interest.

      Third. That the plaintiffs, at the request of the defendant, undertook to roll into gun barrels, and to cone-seat, anneal, straighten and splice about a certain number -of (2680) skelps, at the prices stated in the first cause of action. That the plaintiffs agreed with the Trenton Iron Company .to do such work at such prices. That the defendant refused to pay such sums, and that the plaintiffs were compelled by suit to pay therefor a certain sum ($3304.43) - which, with interest, the plaintiffs claimed to recover.
    The defendant, by his answer, claimed as a part of the agreement, stated in the .first cause of action, that the plaintiffs were to allow for work put upon them by the defendant, which proved to be defective, $1 for each-barrel. That of the 1100 barrels delivered, 325 were returned as defective; that the cost of each of said barrels returned was $2.36, in the aggregate $767; that upon 145 of such barrels, the defendant had put work, amounting to $145, the whole aggregate being $912, leaving due to the plaintiffs only the sum of $254.
    As to the second cause of action, the defendant admitted the order for the fifty tons of gun iron; bqt averred that before any irón was imported thereunder, he countermanded the whole of said order. He denied that such iron was delivered, or any part thereof, or that the number of tons, mentioned in the third cause of action, were imported, or were delivered to him under such order or otherwise. He also denied the allegations in the third cause of action.
    The action being tried by the chief justice, without a jury, he found as facts: That the plaintiffs agreed to pay $2.36 for each defective skelp. That there was no agreement to pay the plaintiffs for straightening or splicing. That 180 of the 1100 barrels, mentioned in the first cause of action, were returned to the plaintiffs as defective. He further found, that the defendant agreed to purchase the iron skelps mentioned in the third cause of action at the prices therein mentioned; and that the plaintiffs were to allow him' $2.36 for each defective barrel. That the whole of said 2680 skelps were delivered by the defendant, of which 963 were returned by him as defective. He deducted $424.80 from the aggregate price for the 1100 skelps, for defective barrels, and $2273.88 from the agreed price for the 2680 skelps, also for defective barrels. He gave judgment for the balance, with interest from the commencement of the suit. The claim ,stated in the second cause of action was wholly disallowed by him.
    The defendant appealed.

      A. J. Vanderpoel, for the appellant.

      George Bliss, for the respondent.
   By the Court, Monell, J.

The principal question in this case is, whether there is any evidence to support the judgment. The court in bank will not weigh the evidence for the purpose of ascertaining whether the learned justice came to a correct conclusion; nor will we disturb a judgment when there is any evidence to sustain it, even where, upon examination, we might think a. different conclusion should have been reached. It is well settled that a finding 'upon conflicting evidence will not be disturbed by an appellate court. (Hall v. Morrison, 3 Bosw. 520. Morris v. Second Avenue Railroad Co., 8 id. 679. Bearss v. Copley, 10 N. Y. Rep. 93. Woodruff v. McGrath, 32 id. 255.)

The contract fo roll, cone-seat an d anneal the 1100 skelps, was admitted by the defendant, with some qualification or alteration of its terms. * * * The number found to have been defective was 180. • That number seems to be quite as large as the defendant could have expected under the evidence. The only question in respect to the five tons, was the number of condemned guns ; when that was ascertained, the amount due to the plaintiffs was easily determined.

The real controversy in regard to the thirteen tons of skelp iron was, not whether there was a sale of it to the defendant, coupled with an agreement on his part to pay for rolling, cone-seating and annealing; but whether upon the transfer of his contracts by the defendant to Robinson, he (Robinson) did not assume the defendant’s contracts with the plaintiffs, and was not accepted by them as their debtor. [After examining the conflicting evidence upon this point, the court proceeded.]

Upon all this conflicting evidence, the justice found against the defendant; and after allowing at the rate of $2.36 for defective barrels, gave judgment in the plaintiffs’ favor for the balance. .

As to the objection that the claim to recover for the thirteen tons was not embraced by the pleadings, it is enough to say that the justice has found the claim was sustained by the proof; and we have the right either to treat the complaint, as amended, in such respect as the court at special term would have allowed, (Bate v. Graham, 11 N. Y. Rep. 237,) or now to conform the pleadings to the facts as found by the justice. (Pratt v. Hudson River Railroad Co., 21 N. Y.. Rep. 305.) The question arising under the thirteen ton contract was fairly litigated, and the judgment in respect to it should not be disturbed on merely technical grounds.

I think the allowance of interest was correct, and that none of the exceptions taken by the defendant can be sustained.

I am in favor of affirming the judgment, with costs.

Garvin, J. concurred.

McCunn, J.

I must dissent in this case. This action was brought to recover, (1.) The cost of rolling one thousand one hundred gun barrels, which the plaintiffs claim they had, at the defendant’s request, procured to be rolled and worked from iron previously sold by them to him; (2.) The price • of thirteen tons of skelp iron, which they claim to have sold the defendant; and, (3.) The cost of rolling, coneseating, and annealing said thirteen tons of iron into gun barrels, which they also claim to have procured to be done at the defendant’s request.

Three questions are involved in this case.

First. Was the amount found by the court below, on the first cause of action, correct ?

Second. Was the learned justice right in finding, on the second cause of action, “ That, although the plaintiffs could not recover, under the contract between the parties, for fifty tons, yet he was justified in allowing for the value of the thirteen tons of skelp iron.”

Third. Was the court justified in finding that the defendant was responsible for the rolling, &c. of these thirteen tons of skelp iron into gun barrels ?

On a careful examination of the evidence touching these' questions, I think the court erred in finding for the plaintiffs.

The learned justice found, that one thousand one hundred barrels made out of the five tons, were delivered by the plaintiffs to the defendant; out of which number-three hundred and twenty-five were returned as defective; and after deducting the value of the number so returned, allowed $741.20 as due to the plaintiffs from the defendant. But he did not allow for the iron, or for work expended by the defendant- on the barrels so returned, to the amount of $487.20, which should have been deducted out of the $741.20, leaving only the sum of $254 to be found due by the defendant to the plaintiffs, being the proper amount due on the first count. In this respect the court erred.

The next and principal question in this case, the disposition of which will, in my judgment, end the controversy, is, “ Did the sale of the thirteen tons of skelp gun iron, from the plaintiffs to the defendant, take place ?” I am clearly of- opinion it did not. The plaintiffs undertake to show that a sale of thirteen tons of iron did take place from their firm to the defendant; but, on a careful examination of all the testimony, it will be seen that such was not the case.

[The learned judge then proceeded to examine the testimony, to show that a prior order for fifty tons of iron skelps had been canceled by the parties, and proceeded.] In my mind, here the case should have ended. Because the complaint only asks, and the plaintiffs’ counsel, at the trial, only demanded, first, the value of the labor expended on the first five tons ; next, the value of thirteen tons delivered under the fifty ton contract, as part of the said contract; and, lastly, the value of the labor expended on said thirteen tons.

So that the court below made a mistake when it found for the value of thirteen tons, separate and apart from the contract of fifty tons, and for work and labor expended thereon. The object of that contract was to protect the defendant from bad iron and unskillful workmanship; and to hold that these thirteen tons were not delivered under the fifty ton contract, and subject to its provisions, would be to deprive the defendant of the safeguards provided in the contract, and would be tantamount to compelling the defendant to take any and every trash of barrels the plaintiffs might deliver. The contract was made, and its stipulations, on the part of the plaintiffs and defendant, entered into, with the express purpose of providing against bad iron and unskillful workmanship, so as to enable Roberts to supply the government with muskets such as would pass inspection by government officers. The propriety of such a provision is shown by the fact that the barrels furnished from the thirteen tons of iron, as a whole, were nearly worthless. If that contract was annulled between the parties, what safeguard had the defendant against any imposition the plaintiffs might practice upon him in making these barrels ? Rone whatever.

[The learned judge then discussed the evidence, to show that there was no contract for the purchase of the thirteen tons, different from that for the fifty tons, and added.]

The letter of the 11th of October is clear on this point; and it conclusively shows that the plaintiffs, seeing the defendant would not take the barrels, sold and transferred them to Robinson, the defendant’s successor; and this theory is fully borne out by the letter of the defendant to the plaintiffs, in answer to one of the 11th of October. Until that time, the plaintiffs looked to Robinson for payment; and this letter was never answered. Indeed all the written evidence, as well as all the oral evidence, fastens the responsibility for the thirteen tons on Bobinson ; and if Bobinson .had been solvent, I am inclined to believe this action would not have been brought against the defendant.

[The learned judge then compared the testimony of one of the plaintiffs with that of the defendant and others, and concluded that the whole of his evidence was of such a character as to throw grave doubts on its truth; that it was an effort to shift the responsibility of a debt upon a solvent person when the real debtor was insolvent. He also compared the testimony of such plaintiff respecting an order in writing given by the defendant in his presence, to Mr. Brown, with that of the latter ■ two and another witness, (Cameron,) and concluded that their testimony was clear, and without effort, while that of the plaintiffs was confused, and, apparently, fabricated; that other illustrations from the evidence could be offered to show the mistake made in rendering judgment for the plaintiffs. He then referred to affirmative evidence, to show that no contract but that for fifty tons was made, after that for the five, and thought that all the witnesses, both for the plaintiffs and defendant, tended that way; against this strong current stood only the testimony of one of the Footes; and that given in such a loose, hesitating manner, that it would be unsafe to found any judgment or-decree upon it.]

In disposing of this case, I have not touched the question as to whether the court below was justified in allowing the plaintiffs to recover for goods sold and delivered, and work and labor done and performed generally, under a complaint framed upon a special contract, and when no such claim for goods sold and delivered was insisted upon at the trial. My determination of'the'case on the merits, renders such an examination unnecessary.

I am, therefore, of opinion that the judgment should be reversed, unless the plaintiffs consent to reduce the amount claimed by them to the sum of $254; in which event judgment should be affirmed for that sum, without costs.