author: By the Court.—Monell, J. Barbour, Ch. J. (dissenting).

text:
    MARY LUDDINGTON et al., Plaintiffs and Appellants, v. ABRAHAM B. MILLER et al., Defendants and Respondents. .
    A motion for a new trial, upon a case, or upon exceptions to the rulings or charge of the court, Or for insufficient evidence, or for surprise, or on newly discovered evidence, can be made and is entitled to be heard at Special Term, either before or after judgment. ■

    The case of Tracey v. Altmayer, 46 N. Y. 599, reviewed and regarded as decisive of this question, and covers any motion for a new trial that can be made at Special Term, including a motion on a case and as wed upon the law as upon the facts. The act of 1832 concerning the Supreme and Circuit Courts (Laws of 1832, Chap. 128, p. 188), and § 265 of the Code, compared and considered, and declared to embrace not only motions for a new trial, on the grounds of newly discovered evidence, surprise, or that the verdict is against the evidence and kindred grounds, but also includes exceptions and a motion on a case.

    Private bonded warehouses, existing under the act of Congress of March 28th 1854, and the regulations pertaining thereto, made by the secretary of treasury, are under the sole control and management of the warehouseman who owns the same, or stores the goods therein, and receives pay therefor, so far as the supervision and management of the hatches or hatchways; and such warehouseman is responsible for any negligence or want of proper care in the supervision and management of such hatches or hatchways, by or through which, a party may be injured.
    Held, That it was error'in the court below to dismiss the complaint on the ground, that the defendants as such warehousemen, were not responsible and liable for negligence or want of proper care in the supervision and management of such hatches or hatchways, and to refuse to submit the question to the jury.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    Appeal from an order denying a motion for a new trial.
    The action was for negligence in causing the death of H. L. Lnddington. Evidence was given upon the trial sufficient to prove, if credited by the jury, that the defendants were the lessees or proprietors and occupants of a large warehouse in this city, which was used by them, in their business of storing goods, under and in accordance with the following provisions of an act of Congress, passed March 28,1854, and the succeeding regulations of the Secretary of the Treasury:
    1. United States law of March 28, 1854:
    “§ 1. Goods subject to duty may be stored in a private warehouse, provided that such private warehouse shall be used solely for the purpose of storing warehoused goods, and shall have been previously approved by the Secretary of the Treasury, and have been placed in charge of a proper officer of the customs, who, together with the owner and proprietor of the warehouse, shall have joint custody of all the merchandise stored in said warehouse, and all the labor on the goods so stored must be performed by the owner or proprietor of the warehouse, under the supervision of the officer of the customs in charge of the same, at the expense of the aforesaid owner or proprietor.”
    2. Regulations by the Secretary of the Treasury:
    ‘ ‘ Application to constitute a private bonded warehouse, must be accompanied by a certificate of two or more insurance companies, that the building is a first-class fireproof store. The collector thereupon to direct the superintendent of warehouses to examine the premises, and report to him, in writing, all the material facts as to the location, construction and dimensions of the store, and means of securing merchandise, etc., which report is to be transmitted by the collector with the certificate of the insurance companies, and his own views, to the Secretary of the Treasury, whereupon the application may be granted upon the proprietor giving the prescribed bond. Stores of class 2 and 3 mnst, previous to their being used for the storage of merchandise, be provided with such fastenings on the doors and windows as the collector may deem requisite for the security of the property. The store must be separated from the adjoining buildings by a brick or stone wall, in which no door or other opening will be permitted. An office for the accommodation of the proprietor will be allowed in these stores, but such office must be separated by a permanent partition from the rest of the store, so that the proprietor shall have no access to the goods, except in the presence of the officer, who must be allowed such use of the office as may be necessary for him in making his daily returns, receipts, and examinations.”
    3. Duties of store-keepers. Regulations by the Secretary of the Treasury:
    “ All bonded stores, as well as the stores occupied by the appraisers, are placed by the collector in the custody of officers, designated for the purpose, who are known as store-keepers, and assistant store-keepers. The storekeeper is required to keep the keys of the store in his own possession, and personally superintend the opening and closing of the doors and windows. Both he and the assistant store-keeper, if there is one, are required to be in constant attendance at the stores while they are open.
    “ Store-keepers will not suffer any goods to be received, delivered, sampled, packed or repacked, except in their presence, or in the presence of the assistant store-keeper.
    “No fire will "be permitted in any "bonded warehouse, except in the "business office attached thereto, and when lights are required, lanterns must "be used.”
    At the time of the accident complained of, Mr. Luddington was an officer of the customs in charge of the-premises and goods therein, and had so "been employed there for about one week. The warehouse was three or four stories in height, about fifty feet in width, and two hundred long. Near the centre of it was a hatchway extending from the upper loft to the cellar, which was at times closed by trap-doors or hatches on each floor, and at other times opened for hoisting or lowering-goods, and it was often quite dark there. Between the piles of goods on the first floor there was a passage-way from the front to the rear of the store, some four feet in width, leading over the hatch when closed,, and around it when open. On the day in question, Mr. Luddington who was near eighty years old, had occasion to go from the front of the building to the water-closet in the rear, when, owing to his imperfect vision, insufficient light there, his own want of care, or some other cause, he walked or fell through the hatchway, which was then open, into the cellar, and was killed.
    The court dismissed the complaint, and the plaintiff excepted.
    A motion was made at Special Term for a new trial on a case.
    A preliminary objection to the motion was made on the ground that judgment, in the action dismissing the complaint, had been entered, and no appeal taken therefrom, and the time for appealing had expired.
    The motion was denied generally.
    The plaintiff appealed.

      Mr. George W. Lord, for appellants.

      Mr. A. H. Dana, for respondents.
   By the Court.—Monell, J.

We cannot determine from the order in this case (no opinion seems to have been written) whether the preliminary objection to the motion was considered in the court below. The order ■denying the motion does not state that it was denied for the want of power to entertain the motion after judgment. But the question is, nevertheless, properly before us upon this appeal.

The motion which was made on the first day of the present term, to dismiss the appeal on this ground, did not necessarily involve this question, as that motion was denied chiefly bn the ground that the appeal was regular, and the objection should be taken on the argument .-of the appeal. We did, however, refer to the recent case of Tracey v. Altmayer (46 N. Y. R. 599), and regarded it as decisive of the question.

But as there is still a difference of opinion among us, as to the extent and effect of that decision, it is necessary to examine it again.

As I understand that case, it decides that the act of 1832 concerning the Supreme and Circuit courts (Laws 1832, ch. 128, p. 188) is still in force.

That act provides in terms that where “ any till of exceptions shall be taken, demurrer to evidence put in, case made, or notice of motion given for a new trial on newly discovered evidence, and the proceedings shall not be stayed,” judgment may be entered and execution issue. Nevertheless, the other party may proceed to a hearing of the exceptions, demurrer, case, or motion, and if he suceeds, the court may set aside the proceedings and “ order restitution. ’ ’ The only change, as ■Judge Greek says, is in substituting the Special Term for the Circuit Judge, as the place of hearing.

The grounds for a motion for a new trial, as prescribed Tby the Code, are substantially the same as in the act of 1832. They are “a case, exceptions or otherwise,” the latter embracing newly discovered evidence, surprise, etc. (Code, § 265).

It will be see'n, therefore, that neither the act of 1832 nor the Code is confined to motions on the ground of newly discovered evidence, or of surprise, or that the verdict is against the evidence,and kindred grounds, but embrace exceptions and motions on a case.

In Tracey v. Altmayer, the motion at Special Term was on the ground of newly discovered evidence; but the court does not draw any distinction between that ground of motion and any other mentioned ip the act. If a motion can be made after judgment in one case, it can in any other; they are all classified as distinct grounds, and no exception or distinction can be made. The court so say (p. 602). “The question is therefore “presented, whether a motion can be made at Special “Term for- a new trial upon the ground that the verdict “is against the weight of evidence, or surprise, or newly ■ “discovered evidence, or the misconduct of the jury, “ or other grounds, after the entry of judgment upon “the verdict.” That was all there was necessity for saying, as the ground of the motion was one of those specified in the Code. The court, however, approved of Rapelye v. Price (4 Hill, 119), when it was held, -that a case or exceptions might, under the act of 1832, be heard after judgment.

In concluding the opinion, the court say : “The right 6 c to move for a new trial upon a case at Special Term is “expressly given by the Code. But the party obtaining the verdict has the right immediately to enter “judgment thereon, unless his proceedings are stayed. “Thus, if the motion cannot be made after judgment, “ the absolute right to make it is converted into a right “resting in the discretion of the court, whether or not “to grant a stay of proceedings upon the verdict. This /‘is a very different thing from the positive right given “ by law, and the former should not be substituted for “the latter, unless pursuant to the manifest intention of “a statute. But there is no such statute.”

Nothing can be plainer, I think, than that this decision covers every motion which, under the provisions of the Code, can be made at the Special Term for a new trial, and includes, therefore, a motion on a case, and as well upon the law as upon the facts.

I do ¿ not find any distinction made in the cases. Down to 1865 they are collated in a note to Tucker v. White (28 How. Pr. R. 78), and the motions were upon the law in many of them; and in Maloney v. Dows (18 How. Pr. R. 27), the motion was on exceptions to a non-suit. So in Folger v. Fitzhugh (41 N. Y. R. 228), the motion was on a case containing the pleadings, the proceedings, and evidence on the trial, with the charge to the jury.

Whether, therefore, the motion for a new trial be upon exceptions to the rulings or charge of the court, or for insufficient evidence, or for surprise or newly discovered evidence, they are all embraced within the unqualified and positive right given by the Code; and equally under the case of Tracey v. Altmayer, entitled to be heard at Special Term, either before or after judgment.

I have long observed the impropriety of allowing two appeals, one from the judgment, and the other from the order denying a motion for a new trial. It has led to separate arguments of the same questions, and is calculated to produce confusion. But there is an undoubted right to go to the Special Term with the motion, and as undoubted a right to appeal from the order as well as from the judgment. Until the legislature see fit to change it, we must recognize and enforce the right.

I also appreciate the objection, that to allow a motion after judgment, and especially, as in this case, after the time to appeal from the judgment has expired, is virtually to substitute the motion for the appeal; thus in effect enlarging the time to appeal against the prohibition of the statute. But, if we find the right to do so in the statute, our duty is to allow it, and-not trouble ourselves with reasons, however ample they may be, which might be proper for the legislature, when asked to repeal or alter the law, but which cannot justify us in construing the statute otherwise than as it was intended it should be construed by those who made it.

It remains to be seen whether any error was committed at the trial.

It is unnecessary to inquire whether the regulations of the Secretary of the Treasury attempt to confer upon custom-house officers, who are placed in charge of these private warehouses, greater powers than are authorized by the statute or not. It is enough to say that neither those regulations nor the law attempts to give to those officers any supervision over the hatches or hatchways. They are subject to the sole control and management of the warehouseman who stores the goods and receives pay therefor. Considering this, and in view of the foregoing facts, there can be no doubt that the jury might, in their judgment and discretion, well have found that the accident was occasioned by the negligence of the defendants, and that there ivas no want of proper care on the part of Mr. Luddington which contributed thereto, and it follows that the court erred in refusing to submit those questions to them, and in dismissing the complaint.

The order should be reversed, and a new trial granted, with costs to the appellants to abide the event.

Van Vorst, J. concurred.

Barbour, Ch. J. (dissenting).

This is an appeal from an.order at Special Term denying a motion for a new trial upon a case and exceptions, which motion was made after a j udgment had been entered in favor „ of the defendants, and after the time of appealing therefrom had expired.

Upon the motion, helow, and at the hearing here, it was claimed by the counsel for the defendants, that a motion for a new trial upon a case and exceptions merely, and not embracing affidavits showing' fraud, surprise, or newly discovered evidence, could not properly be entertained after a judgment had been entered, or, at most, not after the losing party had, by his laches, lost his right of appealing from such judgment.

The action was-for negligence in causing the death of H. L. Luddington. Evidence was given upon the trial sufficient to prove, if credited by the jury, that the defendants were the lessees or proprietors and occupants of a large warehouse in this city, which was used by them in their business of storing goods, under and in accordance with the following provisions of an act of Congress passed March 28, 1854, and the succeeding regulations of the Secretary of the Treasury:

T. United States law of March 28, 1854:

“§ 1. Groods subject to duty may be" stored in a private warehouse, provided that such private warehouse shall be used solely for the purpose of storing warehoused goods, and shall have been previously approved by the secretary of the treasury, and have been placed in charge of a proper officer of the customs, who, together with the owner and proprietor of the warehouse, shall have joint custody of all the merchandise stored in said warehouse, and all the labor on the goods so stored must be performed by the owner or proprietor of the warehouse, under the supervision of the officer of the customs in charge of the same, at the expense of the aforesaid owner or proprietor.

“2. Regulations by the Secretary of the Treasury:

“Application to constitute a private bonded warehouse must be accompanied by a certificate of two or more-insurance companies that the building is a first-class fireproof store. The collector thereupon to direct the superintendent of warehouses to examine the premises, and report to him, in writing, all the material facts as to the location, construction and dimensions of the store, and means of securing merchandise, etc., which report is to be transmitted by the collector with the certificate of the insurance companies; and his own views, to the secretary of the treasury, whereupon the application may be granted upon the proprietor giving the. prescribed bond. Stores of class 2 and. 3 must, previous to their being used for the storage of merchandise, be provided with such fastenings on the doors and windows as the collector may deem requisite for the security of the property. The store must be separated from the. adjoining buildings by a brick or stone wall, in which no door or other opening will be permitted. An office for the accommodation of the proprietor will be allowed in these stores, but such office must be separated by a permanent partition from the rest of the store, so that the proprietor shall have no access to the goods, except in the presence of the officer, who must be allowed such use of the office as may be necessary for him in making his daily returns, receipts and examinations.

“3. Duties of store-keepers. Regulations by the Secretary of the Treasury :

“All bonded stores, as well as the stores occupied by ' the appraisers, are placed by the collector in the custody of officers designated for the purpose, who are known as store-keepers and assistant store-keepers. The storekeeper is required to keep the keys of the store in his own possession, and personally superintend the opening and closing of the doors and windows. Both he and the assistant store-keeper, if there is one, are required to be in constant attendance at the stores while they are open.
“Store-keepers will not suffer any goods to be received, delivered, sampled, packed or repacked, except in their presence, or in the presence of the assistant store-keeper.
“No fire will be permitted in any bonded warehouse, except in the business office attached thereto, and when lights are required lanterns must be used.”

At the time of the accident complained of, Mr. Luddington was an officer of the customs in charge of the premises and goods therein, and had so been employed there for about one week. The warehouse was three or four stories in height, about fifty feet in width, and two hundred long. Near the centre of it was a hatchway, extending prom the upper loft to the cellar, which was at times clo& -d by trap-doors or hatches on each floor, and at other times opened for hoisting or lowering goods, and it was often quite dark there. Between the piles of goods on the first floor, there was a passage-way from the front to the rear of the store, some four feet in width, leading over the hatch when closed, and around it when open. On the day in question, Mr. Luddington, who was near eighty years old, had occasion to go from the front of the building to the water-closet in the rear, when, owing to his imperfect vision, insufficient light there, his own want of care, or some other cause, he walked or fell through the hatchway which was then open, into the cellar, and thereby lost his life.

It is unnecessary to enquire whether the regulations of the Secretary of the Treasury attempt to confer upon custom-house officers, who are placed in charge of these private warehouses greater powers than are authorized by the statute or not. It is enough to say that neither those regulations nor the law attempts to give to those officers any supervision over the hatches or hatchways. They are subject to the sole control and management of the warehouseman who stores the goods and receives pay therefor. Considering this, and in view of the foregoing facts, there can be no doubt that the jury might, in their judgment and discretion, well have found that the accident was occasioned by the negligence of the defendants, and that there was no want of proper care on the part of Mr. Luddington, which contributed thereto, and it follows that the court erred in refusing to submit those questions to them, and in dismissing the complaint.

But, although the plaintiffs might have been entitled to a reversal of the judgment against them, because of that error, had they appealed therefrom, and, of course to a new trial, it by no means follows that an order for a new trial can properly be made upon a motion founded upon a case and exceptions, merely after a judgment has been entered and the time for appealing therefrom has expired.

Subsequent to the adoption of the Code and up to the announcement of the decision of the court of appeals in Tracey v. Altmayer, (46 N. Y. 598,) the weight of authority was, undoubtedly, against the right of a party to move for a new trial after a judgment had been-entered against him. In that case the motion at Special Term for a new trial was based upon the ground of surprise and newly discovered evidence, and was made after the entry of judgment upon a verdict. The court of appeals held that an act passed by the legislature in 1832 (L. of 1832 p. 188) was still in force, and that such act empowered the court at Special Term to grant motions for new trials after judgment, entered by the clerk upon a verdict. That act, however, it appears to me, does not authorize motions for new trials upon case and exceptions after judgments have been entered by direction of the court upon the trial. Be that as it may, however, neither the decision in question, nor any other, so far as I can discover from a careful examination of the books, determines that a motion for a new trial, founded upon a case and exceptions alone, can properly be made after a judgment has been entered, not only, but even aftez the time for appealing from such judgment has expired. Such a practice, indeed, if generally adopted, would be most unsafe and dangerous, as well as contrary to the well established principle, that a judgment regularly obtained in an action, in which both parties have respectively had a fair and full hearing upon the merits, must be considered as the final end of the litigation, unless appealed from within the period limited by the statute. A judgment thus obtained, and, by a failure to appeal, acquiesced in, becomes vested and absolute in so far as that action is concerned; and that was, no doubt, contemplated by the legislature in adopting the 345th section of the Code, which declares that “a judgment is the final determination of the rights of the parties in the action,” and those provisions which so absolutely limit the period within which appeals may be brought, that such time cannot be enlarged or extended by any subterfuge or evasion whatever.

In the case before us the appellant endeavored in effect to evade, by means of a motion for a new trial, the force of the statute which limits the time within which appeals maybe brought, and of the numerous decisions upon that subject, and if he eventually succeeds in establishing the rule that orders for new trials may as well be made after the period for appealing has passed away as before that time, expensive appeals from judgments will in many if not most cases be dispensed with hereafter, as the party aggrieved may, at a comparatively small cost, obtain what in effect would be a reversal of the judgment by means of an order at Special Term for a new trial; and that, too, perhaps, years after notice of the recovery of the judgment had been served upon him. It is obvious that the intention of the legislature in regard to the limitation of time within which appeals must betaken to secure a review of the judgment and proceedings cannot thus be defeated. Without expressing an opinion as to whether motions after judgment for a new trial can properly Tbe made in any case not expressly provided for in the act of 1832, it is sufficient to say that the motion for a new trial in the case before us ought to have been denied for the reason that it was not made until the time for appealing from the judgment had expired.

The order appealed from should be affirmed, with costs.


source: Caselaw Access Project

author: By the Court.—Monell, J. Curtis, J. (dissenting).

license: Public Domain

text:
    FRANCIS A. PALMER, Plaintiff and Respondent, v. JOHN FOLEY, Defendant and Appellant.
    The provision made by law to try the title to a public office is exclusive and not cumulative. Whenever it is alleged that a person has usurped a public office, the attorney-general is authorized to institute an action on behalf on the people, to try the right of such person to the office, and in such action the right of any other claimant to the office may also be determined.
    These provisions furnish the only remedy for the trial and determination of such questions, and they prohibit their trial in any other manner.
    The defendant, under an appointment by the city comptroller to the office of deputy chamberlain, undertook, by threats, etc., to intrude into and to take possession of that office, and to oust the deputy in possession and doing tho duties of the office under the appointment of the chamberlain, the plaintiff.
    Jurisdiction ought not to be assumed to oust an officer from an office under the color of title," until his right to such office has been settled in the mode prescribed by law.
    The intrusion by a stranger into the office or apartment occupied by a public functionary, and his expressed determination to remain there and exercise and perform the duties of the office against the wishes of the incumbent, would justify that incumbent in removing such stranger therefrom, and to use, if necessary, such reasonable force as might be required to eject him therefrom.

      Semble. A like power exists in an incumbent to exclude any person from attemping to usurp or to exercise any of the functions of his office, under authority not recognized or admitted by such incumbent.

      Before Monell, Freedman, and Curtis, JJ.

      Decided May 3, 1873.
    Although this power or remedy exists, its exercise might produce confusion, disorder, and serious loss in a public office, and the issue of an injunction as a preventive of such attempts or threats to intrude into or usurp the functions of a public office, is the better remedy.

      Hdd, That the process by injunction was the proper remedy of the plaintiff, and should be sustained upon the principle that it is a proper substitute for another remedy, which, had it been adopted, might have .produced confusion and disorder in a public office, and perhaps serious loss to the city, if not to the immediate parties concerned.
    For the plaintiff, until the title to the disputed office should be tried and established by due course of law, as the responsible custodian of the treasury of the city, and of the office in which his official business is transacted, and of the books and papers connected therewith, could properly exclude the defendant therefrom, and with force, if necessary, to prevent the usurpation of the office, or that he could demand the aid of the civil authority to protect the office from any unwarrantable intrusion ; but, instead of asserting his right thus to exclude the defendant, has adopted a measure more conformable to peace and order.
    The object of the process of injunction is both preventive and protective. It seeks to prevent a meditated wrong, and not to redress an injury, which can usually be done only at law, and then to protect a party against any unlawful invasion of his rights.
    The general object and use of the process of injunction considered.
    Appeal from an. order of Special Term, continuing an injunction.
    The action was brought by the plaintiff, the chamberlain of the city of New York, to restrain the defendant, who claimed to be deputy chamberlain under an appointment by the comptroller, from intruding upon the office. An injunction was granted and continued by the Special Term.
    From this order the defendant appealed.
    The plaintiff was appointed chamberlain of the city of New York January 6th, 1872, and was in the possession and exercising the duties of his office and claiming the right under chapter 623, laws of 1866. On the sixteenth of May, 1873, he appointed Walter B. Palmer to be deputy chamberlain, who, thereupon, took the oath of office and entered upon the duties as such deputy.
    The defendant claimed that on the sixth day of January, 1-873, he had been appointed deputy chamberlain by Andrew H. Green, comptroller of the city of New York, who claimed the right under section 32, chapter 137, laws of 1870, and had taken the oath and given security in a bond of two hundred thousand dollars ($200,000), and the bond approved by the comptroller.
    That acting under such appointment defendant endeavored to enter and take possession of the office of deputy chamberlain, but plaintiff refused to recognize the appointment of defendant and brought an action to restrain him from intruding into or performing any of the duties of deputy chamberlain of the city of New York. Other facts appear in the opinion of the court, and the dissenting opinion of Curtis, J.

      R. W. Townsend & A. R. Dyett, of counsel, for appellant.

      A. R. Lawrence, Jr., & John W. Edmonds, of counsel, for respondent.
   By the Court.—Monell, J.

I do not think it necessary in this case that it should be determined where the power resides to appoint a deputy chamberlain of the city, whether in the chamberlain or in the comptroller.

The consideration of that question would be, in effect, the trial of the title to the office, which cannot be done in so collateral or incidental a manner.

The provision made by law for the trial of such questions is exclusive and not cumulative. Whenever it is alleged that a person has usurped a public office, the attorney-general is authorized to institute an action, on behalf of the people, to try the right of such person to the' office (Code, § 432). And in such action the right of any other claimant to the office may also be determined (Id. § 436). These provisions furnish the only remedy for the trial and determination of such questions, and they prohibit their trial in any other manner. This is established by many cases (Hall v. Luther, 13 Wend. 491; People v. White, 24 Id. 525 ; Mayor v. Tucker, 1 Daly, 107 ; Tappan v. Gray, 9 Paige, 507).

In the last case cited, which was affirmed by the court for the correction of errors (7 Hill, 259), the power of the court to try the question, even as a means of affording some other relief, was examined, and the chancellor says that jurisdiction ought not to be assumed to oust an officer from an office held under the color of title “until his right to such office has been settled in the mode prescribed by law.”

Walter B. Palmer received his appointment as deputy chamberlain from the chamberlain, who assumed, at least, to possess the power to make.the appointment. He tookpossession of the office and has since discharged its duties. This gave him sufficient color of title to constitute him the de facto deputy, entitling him to hold the office until ousted by the judgment of the court (Parker v. Baker, 8 Paige, 428). And being in possession he is presumed to hold de jure also.

If. the relief, therefore, which is sought in this action depended upon its being first determined that Palmer was not legally appointed to the office, it could not be ; obtained. His title to the office cannot be determined j in this way.

But the action is instituted by the person who is the incumbent of the office of chamberlain, not eo nomine, but under the allegation that he is the chamberlain, in possession of the office, exercising the powers and discharging the duties appertaining to it, and that, claiming to possess the requisite power, he had appointed said Palmer to "be deputy chamberlain, who, as such deputy, had taken possession of the office, and had entered upon the discharge of its duties.

It is then alleged that the defendant had intruded upon, and had attempted to take possession of the same office, and had demanded his recognition as the deputy of the chamberlain, and had declared his intention to exercise the powers and discharge the duties of the office, notwithstanding the refusal of the plaintiff to recognize his right to do so.

The relief demanded is that the defendant be restrained from intruding into the office, and from exercising any of its functions, until (for such is the only effect of the injunction) his right to the office has been established by law.

The allegation in the complaint, of the appointment of Palmer by the plaintiff, and the denial by the defendant of such appointment, or of any power in the plaintiff to make the appointment, and the additional averment that the defendant was the legally appointed deputy chamberlain, do not confer any power on the court to try the question of title.

Such right cannot be determined in this action; nor, as I understand the plaintiff s prayer for relief, to require the court to make such determination, the prayer being merely that,the defendant be prevented from intruding into the office until his right to it has been determined in a proper action.

It is alleged that, upon the plaintiff’s refusal to recognize the defendant as the deputy chamberlain, the latter gave notice and proclaimed “that he intended, at all events, to exercise the duties and powers of the office.”

From this it naturally follows, as a proper implication, that the defendant intended, in performing his official duties, to occupy a portion of the chamberlain’s apartments, and to use such of the books and papers therein as he might require.

The intrusion, therefore, which is sought to be prevented, is not a mere constructive or technical taking possession of the office, but a physical or manual entering by the defendant into the apartment assigned to and occupied by the city chamberlain, and taking possession of one of the desks therein, and thus attempting to exercise the powers and discharge the duties of deputy chamberlain.

It cannot be doubted, I think, that a similar intrusion by a stranger into the apartment occupied by a public functionary would properly be regarded as a trespass, justifying the incumbent of the office in removing such stranger therefrom ; and in doing so to use, if necessary, such reasonable force as might be required.

There is a responsibility resting upon every public officer for the preservation and safety of the books, records and other property committed to his custody and care, which give him the right in protecting such property to exclude persons from his apartments who improperly, either in point of time or manner, attempt to interfere with the custody of such property or with the orderly discharge of his official duties.

A public office is not so entirely public property that all citizens have an equal right to enter into and occupy it. The incumbent of the office is the agent of the people, clothed with authority to exercise certain powers and to discharge certain duties for their benefit, and for that purpose is intrusted with and held responsible for the care and safety of the public property. And although the public may, for the 'transaction of business, enter a public office and have reasonable access to the public records, books and papers, such right, nevertheless, must necessarily and very properly be subordinated to the power and control of the official in whose custody the public has placed such property. And in the proportion that the responsibility of the official is greater, must his power be increased. This is peculiarly so with officers who are the custodians of the public-treasure.

It would be most unsafe to allow a miscellaneous intrusion into his office, or any unwarranted interference with the discharge of his duties ; and he should, therefore, be clothed with all requisite authority to exclude and prevent any such improper or unlawful intrusion or interference with it.

It is not inapt to say of the chamberlain’s office that it is one of high, and peculiar responsibility and importance. The whole city treasury is in his custody, amounting annually, as is alleged, to at least fifty millions of dollars; for the safety of which, and its-legal disbursement, the chamberlain is accountable.

For the protection of this large sum, and its legal disbursement, the city chamberlain has peculiarly strong-claims upon the law, and has the right to be not interfered with, except upon the most justifiable grounds, and then only .in the mode prescribed by law.

And, in this connection, it is proper to say that the office of deputy is made by statute equal to the superior officer during his absence or inability to act (Laws of 1866, chap. 623), the law clothing the deputy with all the powers possessed by his superior, and rendering the office one of peculiar importance.

If, as I believe, the power exists as to a stranger, and if in this case the public official may, for the protection, of his office, justly exclude such person from attempting to usurp any o'f its functions, then it follows, I think, that the right to exclude the defendant in this-case from entering into the apartments officially occupied by the plaintiff must be recognised. The appointment of the defendant to the position of deputy chamberlain by an authority not recognized or admitted by the plaintiff, does not of itself, or necessariíy, confer upon Mm any such right of office which, as between himself and the principal officer, could change their relations.

The defendant is not in possession of the office. He is not, therefore, de facto deputy, and clearly he cannot, for the purpose of this action, be considered a de jure deputy, nor probably a deputy in any aspect, until his right to the office has been established in the manner provided by law. The defendant, therefore, cannot claim any right or privilege growing out of his alleged appointment, and he stands in no better attitude than a mere stranger, except that he may invoke the aid of the attorney-general to proceed against the present incumbent to try the title of the office. But at present he cannot have possession of the office, nor can he enforce a recognition of himself as the legally constituted officer. He must wait until the disputed question is determined in his favor by a judgment in a proper action.

This view of the defendant’s position and rights is, I think, fully maintained in the following cases: Conover v. The Mayor of New York, 5 Abb. 393; Matter of Welch, 14 Barb. 396 ; Devlin’s Case, 5 Abb. 281; Matter of Davis, 19 How. Pr. R. 323 ; Mott v. Donnelly, 50 Barb. 516, where other cases are cited ; Matter of Davis, 19 How. Pr. R. 323.

This question is not affected by the provision of the Eevised Statutes (1 R. S. 125, § 50, etc.) conferring power on the court to require the delivery of books and papers to a successor in office. Yet, even under that statute, the court cannot try the title to the office (People v. Allen, 42 Barb. 253), but may make an order for the delivery of the books upon a primd-facie case of right in the plaintiff, leaving, however, the question of title undisturbed.

Under this inability, therefore, to try the title to the office in this action, the defendant must be regarded as having no other, further, or greater right than any other ■«citizen; and his acts, in reference to the office he claims, must be subjected and subordinated to the power which the chamberlain possesses to protect the office from any improper intrusion.

In this view of the rights of the respective parties, the only question, therefore, is, can an injunction, which has-for its purpose the restraining of the defendant from entering upon, interfering with, or assuming the duties of the disputed office be sustained ? That the plaintiff,, as the responsible custodian of the treasury of the city, and of the office in which his official business is transacted, and of the books and papers connected therewith, could properly exclude the defendant therefrom ■ and with force, if necessary, prevent the usurpation of the office, or that he could demand the aid of the civil authority to protect the office from any unwarrantable intrusion, will not, perhaps, be doubted. But it may be questioned if that is not the only remedy the plaintiff can command.

The plaintiff desires that he and the person he has appointed as his deputy may be undisturbed in the office they occupy and claim legally to fill; and instead of asserting his right by bringing to his aid the maxim of the law “ domus sua migue est tutissimus refurgium,” he has adopted a measure more conformable to-peace and order.

The earliest jurisdiction, if not at that time the chief business of the court of chancery, was in assaults, trespasses, and a variety of outrages, which, although cognizable at common law, the party complaining was unable to obtain redress in consequence of the protection afforded to his adversary by some powerful baron or high officer of the county in which the acts occurred (1 Cooper Pub. Rec. 359 ; 1 Story Eq. § 48). And the judisdiction, in cases of trespass to property, has been continued to the present time (2 Story Eq. § 928), and is sustained upon the principle of irreparable mischief, a principle which has since been incorporated into the Code (Code, § 219).

No exact limit is placed upon the jurisdiction in this class of cases. The complainant must have been in the previous undisturbed enjoyment of the property under a claim of right, and it must appear that the relief at law is inadequate.

If the relief consists in restraining the continuance of some act of the defendant, there is no line marked out by any adjudged case to which the jurisdiction must be confined ; and from the nature of things, it must forever remain undefined (Willard' s Eq. Jur. 408).

There is no want of analogy between trespass to property and to the person, or to a personal right in respect to the claim for protection.

In respect to the use of preventive process, the jurisdiction ought to be, and therefore is, the same; and if it is proper in one case to exercise the jurisdiction to prevent a wrong threatened to be done to mere property, how much more proper is it to use the same power to arrest premeditated wrong to the person or personal rights ?

The object of the process of injunction is both preventive and protective. It seeks to prevent a meditated wrong, and not to redress an injury which can usually be done only at law, and then to protect a party against any unlawful invasion of his rights.

The mere novelty of the action, or that the relief sought is possibly without precedent, is not, in my judgment, sufficient to defeat it, if there is principle to sustain it; and I think it should be sustained upon the principle that it is a proper substitute for another remedy, which, had it been adopted, might have produced confusion and disorder in a public office, and perhaps serious loss to the city, if not to the immediate parties concerned.

The course of the plaintiff should, I think, therefore be commended and sustained, and his action not be dismissed because he has thought it proper to apply to the court to protect him in his office against what he claims is an attempt at an unwarrantable intrusion.

In The Mayor, etc., v. Flagg, 6 Abb. 296, a controversy arose between two rival claimants of a municipal office. Pending an action to try the title to the office, the Mayor, etc., obtained an injunction restraining the comptroller from recognizing the acts of either, and each from acting or asserting any claim against the city.

The injunction was sustained on the ground that it was right to come to the court for protection from the conflicting claims until the right to the office had been obtained by one or the other.

In Tyack v. Bromley, 4 Edw. Ch. R. 258, which was a controversy between different persons claiming the same office, the complainant alleging that the defendants had attempted to usurp. the office, the latter were restrained from interfering with the complainant’s duties.

The vice-chancellor, in sustaining the jurisdiction of the court, says (p. 270): “ Courts of justice are bound to aid a party in possession of rights, whether they be natural or artificial, or such as are mere creations of law, whenever those rights have been infringed or their destruction threatened. It is a familiar head of equity jurisdiction to protect by injunction statutory rights and privileges which are threatened to be destroyed or rendered valueless to the party by the unauthorized interference of others; and although it was not proper for equity to restrain in the first instance where there was doubt, yet it would do so without requiring the establishing of the right at law where a clear case of common-law right was presented, and the party is in possession and enjoyment of the right which is threatened to be destroyed or rendered valueless.’ ’

For these reasons it was right, I think, for the plaintiff to come to the court and demand an injunction restraining the defendant from exercising or attempting to exercise the functions of his alleged office, until his right to the office had been duly established.

I am, therefore, in favor of sustaining the injunction. But as the defendant’s counsel claimed that the injunction restrained him from trying the question of title in any action, it should be modified (if the defendant desires it) so as to allow the bringing of an action to try the title to the office.

The order appealed from, thus modified, should be affirmed, with costs.

Freedman, J., concurred.

Curtis, J. (dissenting).

The plaintiff alleges in his complaint, that being chamberlain of the city of New York, and empowered by the act of April 17, 1866, to appoint a deputy chamberlain, he in May, 1872, appointed Walter B. Palmer such deputy, who thereupon took the office, gave the required security, entered upon the duties of the office, and has since continued to hold the office and discharge its duties. He further alleges, that the defendant has intruded upon and attempted to enter into and take possession of that office, but that the plaintiff has refused to recognize him as deputy chamberlain, and denies that the defendant is lawfully appointed, and avers that such intrusion of the defendant is calculated to produce confusion in the city and county treasuries and increase the responsibility of the plaintiff, and jeopard the receipt and enjoyment by the plaintiff of the proper emoluments of his office. The plaintiff asks that the defendant be restrained from exercising any of the powers or performing any of the duties of the office, and that in the meantime, and until further order of the court, the defendant be enjoined from any intrusion into the office, and from exercising any powers or performing any duties appertaining thereto.

The defendant by his answer avers that the plaintiff had' no power to appoint Walter B. Palmer deputy chamberlain; that so much of the act passed April 17, 1866, as authorized the chamberlain of the city of Mew York to appoint a deputy chamberlain was repealed by the act passed. April 5, 1870, which conferred on the comptroller of the city of Mew York the power to make such appointment, and that in accordance therewith the defendant was, on the 6th day of January, 1873, duly appointed by such comptroller to the office of deputy chamberlain, and was duly qualified as such.

The title to the office cannot be tried in this action. The question that arises on the appeal from the order at Special Term is, whether the act of April 17, 1866, by which the chamberlain was authorized to appoint the deputy chamberlain, was repealed by the act of April 5, 1870.

The latter contains the following provisions :

“§ 33. The finance department shall have control of all the fiscal concerns of the corporation and of the appropriations Inade for carrying on the business of the corporation. It shall prescribe the forms of keeping and rendering all city accounts, and the manner in which all salaries shall be drawn, and the mode by which all creditors, officers, and employés of the corporation shall be paid.”
“§ 34. All accounts rendered to or kept in the other departments shall be subject to the inspection and revision of the officers of this department, and it shall settle and adjust all claims in favor of' or against the corporation, and all accounts in which the corporation is concerned as debtor or creditor.”
“ § 35. The chief officer of this department shall be called the comptroller of the city of Mew York.”
“ § 32. The head of all departments, except as otherwise specifically directed herein, shall have power to appoint and remove all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employés, and subordinates in their respective departments. The number of all officers, clerk, employés, and subordinates in every department (except the police and fire departments), with their respective salaries and compensations, shall be such as the head of each department shall designate and approve, except that the. aggregate expense thereof shall not exceed the total amount duly appropriated by law to each department for such purposes.”

The same act further provides in section 120 that “all acts or parts of acts inconsistent with the provisions of this act are also hereby repealed.”

By the language of this act the comptroller is made the head of the department of finance, with full control and responsibility in respect to the fiscal concerns of the corporation, and with power to appoint and remove all clerks, officers, employés and subordinates, and chiefs of bureaus, except the chamberlain, in his department. While the language of the act thus clearly empowers the comptroller to appoint the deputy chamberlain, it remains to be seen whether that language fails to express the intention of the legislature, as is claimed on the part of the plaintiff.

It is urged by the plaintiff that the act of 1866 has been until now acted upon as if still in force, and that in the absence of the chamberlain, however temporary, the deputy has the custody and control of millions of the public money, and that this claim of power by the comptroller to appoint the deputy chamberlain takes away from the chamberlain the control over and custody of the public moneys.

It is also insisted that the chamberlain and all the employés in his office should be entirely independent of the comptroller, and therefore the laws of 1866 and 1870 together provide that the chamberlain should be appointed by the mayor, and hold his office for a definite period, and his subordinates should be appointed by him and hold office during his pleasure, and that to confer upon the comptroller the power to appoint either the chamberlain or his subordinates would effectually destroy that system, and would give to the comptroller power over the public funds far beyond that expressly given to him in the language of any statute.

It is further urged on behalf of the plaintiff that this theory that the chamberlain and his employés should be independent of the comptroller, is so just and so in accordance with the general legislation of the state in • respect to local governments, that the legislature could never have intended that the chamberlain, with his liabilities for the custody of the public moneys, should be without the power to appoint his deputy and clerks. In order to determine whether the plan was so just and wise that the legislature in 1870 must be deemed not to have intended to change it, we may look at the history of its operation. From 1857 until the passage of the act of 1866 the chamberlain was without power to appoint his subordinates. Since then he has exercised that power, but it does not appear that such exercise of power by the chamberlain and independence on his part of the comptroller, has, during the latter period, been accompanied with any such advantages to the city and county in respect to the preservation and cpstody of the public moneys, that the legislature cannot be deemed to have intended to make the change expressed by the language of the act. The papers on the appeal fail to show any such beneficent results accruing from the' increase of power to the chamberlain under the act of 1866 that would justify the presumption that the lawmakers did not intend to repeal it. As far as can be gathered from the statute itself or from these extrinsic circumstances, it is difficult to discover that the intention of the legislature was that claimed for it by the plaintiff.

Neither does the claim that the comptroller, after the passage of the act of 1870, acquiesced in the exercise of the appointing power by the chamberlain, or that the loss of it would increase his responsibility, oj diminish his control of the public moneys, shed any light upon the intention of the legislature. The acquiescence of the comptroller in the exercise of this power by the chamberlain can in no way serve to interpret or give construction to the statute, the language of which is clear, and which for anything that is apparent is such as will best protect the public, however much it may increase the responsibility of the custodian or affect the control of the public funds. It may have -been the promptings of wisdom, enlightened by the experience of the past, that guided the action of the legislature in conferring upon the comptroller the power of appointing the deputy in the chamberlain5 s office.

Occasions may arise when the public treasury will be better protected by the exercise of this power on the part of the comptroller than by leaving it entirely in the keeping at any time of subordinates of the chamberlain’s own creation, and it is difficult to sustain the proposition that the statute must be construed upon the basis that the legislature never could have had these contingencies in view, and never intended to provide against them.

It is suggested that the provision in the second paragraph of the thirty-second section of the act of 1870, which directs that the salaries of all those officers, clerks and subordinates, that are to be appointed by the heads of departments shall not exceed the total amount duly appropriated by law to each department for such purpose, is inconsistent with the law previously and still in force, directing that the salaries of the deputy and clerk in the chamberlain’s office shall be paid by the banks in which he is required to deposit the public moneys; and that, therefore, the chamberlain’s deputy and clerks were not intended by the legislature to be included among those officers whom the comptroller was authorized to appoint.

It is not easy to see any inconsistency when this provision of law directing'' the payment of the salaries of the chamberlain’s deputy and clerks by the banks which are the depositories of the public funds, is itself viewed as an appropriation. This action of the legislature is simply an appropriation of a portion of the interest money belonging to the public, and accruing upon the public money from the deposits of it with the banks, in accordance with the law. The ordering of the payments of these salaries by the banks from these interest moneys due by them to the public, is an appropriation to that extent towards the total amount appropriated by law to the department of finance, and is an appropriation from that part of the public money of the amount of those salaries, and so far from there being any inconsistency in the action of the legislature, it seems, viewed in this aspect, to harmonize with the theory that the intention of the legislature is best indicated by the language it employed, and that this language was that which was best calculated to guard the public treasury.

The State may impose onerous duties and great liabilities upon its public servants, but that is not an element for consideration in giving construction to a statute. The State always keeps open another avenue for their relief.

It was justly stated by the learned judge at Special Term, that this is the personal action of the plaintiff as an individual, and can be maintained upon no other theory than that he is entitled, upon the facts set forth in the complaint, to relief by way of injunction as a matter of private and personal right, and that the right of the plaintiff to an injunction is not to any extent founded upon the allegation in the complaint of the appointment of Walter B. Palmer as deputy chamberlain, but that the 'important question in the controversy is, whether the defendant is the deputy chamberlain, as it constitutes the sole ground of his defence by way of justification. It is to this question these considerations relate, and if the conclusions arrived at as to the constructions to be given the statutes are correct, they justify the defendant in presenting Ms claim, and demanding that he be allowed to enter upon and discharge the duties of the office. But as the defendant claims an office which is already and has been for a long time in the possession of a person who is de facto discharging its duties under color of title, he should, as such claimant, establish his right by due course of law. The steps for him to take are indicated in the Code, sections 433 to 438, and he has no right to seek redress by any force or violence. Any attempt of that nature would be unlawful, and is to be repelled by all lawful means. The very existence of society is dependent upon the maintenance of this principle.

It does not appear by the papers that there has been any resort to force or any threats of resorting to force by the defendant, or that he has taken any other course than such as he might lawfully take in presenting a claim and demanding its allowance by a party in adverse possession.

The law is to be presumed strong enough to protect a party that is in possession of an office, and discharging its duties under color of title, from forcible ouster by a claimant who refrains from seeking to establish his alleged rights by due process of law. An injunction should not be granted upon the suspicion of the incumbent that he may be forcibly ousted. Such a precedent is undesirable.

In the present case it does not appear that there is any just reason to fear that force will be resorted to by the defendant, or that the law is not strong enough to restrain and punish such an act.

The defendant claims that the injunction order appealed from restrains him, among other things, from discharging the duties of the office, even if he should establish his right to it by law, and such a construction may be-given to it, but on the argument the plaintiff’s counsel waived any such claim. Still, in the view here taken, there is no necessity for the injunction, and the order appealed from, allowing it, should be reversed, with costs to the defendant.


author: By the Court.—Monell, J.

text:
    EDWARD COLEMAN, Plaintiff and Respondent, v. VAN BURGH LIVINGSTON, Defendant and Appellant.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided May 3, 1873.
    Proof of the demand for the delivery’of goods stored with a warehouseman, and his refusal or neglect to deliver or to produce the same, is sufficient to cast the burthen of proof of diligence in the care and custody of the property upon the warehouseman.
    The failure to deliver or produce the property, primd facie establishes negligence (Schwerein v. McKie, 5 Robt. 404, Burnell v. The N. Y. & Cent. R. R. Co., 45 N. Y. 184).
    The case of Lamb v. Camden and Amboy R. R.. Co. (36 N. Y. 371), reviewed and considered with those last cited. Meld, That the Lamb case is not in conflict with those cases.
    Appeal from a judgment and order.
    The action was to recover from the defendant, a warehouseman, for the loss of merchandise caused by his negligence.
    Two cases of goods were imported from Paris, and after being entered at the New York Custom-house, were sent to a public store for appraisement. After being appraised, the boxes were sent to the store of the defendant.
    Afterwards the plaintiff, who had become the owner, demanded their delivery, and was told that one of the cases had been stolen from the storehouse, and the other of part of its contents.
    The defendant denied negligence, and the issue was tried by the court and a jury.
    When the plaintiff, after proving a mere demand for the goods and a neglect to deliver them, the defendant alleging that they had been stolen, the defendant moved to dismiss the complaint upon the following ground:
    That the mere non-production of the goods or part of them on demand made, is not evidence of negligence on the part of the defendant, and there is no evidence of any negligence on the part of the defendant, and it is incumbent on the plaintiff to prove such negligence.
    The motion was denied, and the defendant excepted.
    The defendant gave evidence tending to excuse the loss, which is noticed in the opinion, and at the close of the case renewed the motion to dismiss the complaint, which was again denied, and the defendant excepted.
    The defendant requested the court to charge the jury, that they must be satisfied that the goods were taken away in consequence of some acts of negligence of which the jury have other evidence than the loss of the goods.
    This was refused, and the defendant excepted.
    The court charged the jury “ that if the defendant had any goods of the plaintiff in his possession, he was bound to take that care of them that an owner of the same kind of goods (under the same circumstances), of ordinary prudence and caution, would have done. You must also determine what a man of ordinary prudence would do as an owner, in protecting goods of this kind under similar circumstances to those which have been shown to have existed in this case—that is, you must not judge this defendant as if he were a negligent, incautious, careless owner; he must use ordinary caution. On the other hand, you must not call aipon him to use that caution which a man of more than ordinary prudence would exercise in protecting goods of this kind belonging to himself. But if you find they were lost from Mr. Livingston’s ¡possession, and Tie has not accounted for them, under the rule I first laid down, then etc.” And again: “If you come to the conclusion that those ‘goods were in Mr. Livingston’s possession, and that they were lost, he not having used the kind of caution I have spoken of, you will return a verdict for the plaintiff.”.
    The defendant excepted to so much of the charge as instructed the jury that the defendant should account for the loss of the goods.
    The plaintiff had a verdict.
    A motion for a new trial was denied.
    The defendant appealed from the judgment and order.

      Mr. F. Smyth and John McKeon, for appellant.
    ' Mr. Chas. H. Smith, for respondent.
   By the Court.—Monell, J.

The motion to dismiss the complaint, the request to charge the jury, and the exception to the charge, raise the question as to where the burthen rests to establish the defendant’s liability.

The liability of a warehouseman is not for negligence, but for not returning the property which is the subject of the bailment. If he neglects to return it, he is liable, unless he can account for its loss by showing that it has been taken or is gone from his possession without any fault on his part.

He is required to give to property confided to his keeping, the care which a person of ordinary prudence would give to his own property. Nothing more. If, "bestowing such care, the property is lost, destroyed, or injured, without the fault of the keeper, he is relieved from responsibility (Story on Bail. § 444, etc.).

The only evidence to charge the defendant, furnished by the plaintiff, was the non-delivery of the goods when demanded ; and the refusal 'to dismiss the complaint; and the charge to the jury, was to the effect that evidence of non-delivery was, prima, facie, sufficient to cast upon the defendant the burthen of acquitting himself of negligence.

The learned judge who tried this case followed, it is understood, the case in this court of Schwerin v. McKee (5- Robt. 404), where it was held that proof by the plaintiff of the negligence of the defendant was not necessary ; and that the mere non-production of the subject of the bailment was sufficient to cast the burthen of proving diligence upon the bailee.

The learned judge might also have followed, had it been brought to his notice, the quite recent case in the Court of Appeals of Burnell v. The N. Y. and Cent. R. R. Co. (45 N. Y. R. 184), where the court held that the failure to deliver, prima, facie, establishes negligence. That action was to recover for the loss of baggage; and although the property had been transported by the defendants, as common carriers, yet, owing to the circumstance that the owner left the property for several days after its arrival at its destination, before it was demanded, the liability of the company was held to be not that of carriers, but a liability analagous to that of warehousemen. The court say (p. 189): “The failure of the company to produce the subject of bailment, when demanded, prima facie, established negligence and want of due care. When there is a total default to deliver the goods bailed, on demand, the onus of accounting for the default lies with the bailee.”

At the time of the trial in the case now before us, the volume containing a report of the decision, with the opinion of the court, in Lamb v. Cam. and Am. R. R.. Co. (46 N. Y. R. 271), had not been published, and it was not, therefore, brought to the attention of the-judge. That case is supposed to overrule the preceding case of Burnell, so far as relates to the burthen of proof.

In the Lamb case the 'action was against the defend- . ants as carriers, for the loss of merchandise transported under a special contract that the company should not be responsible “for damage or loss by fire.”

The court held, that the goods having been destroyed by " fire,” the liability of the company was not that of carriers, but, as in the Burnell case, a liability like that of warehousemen.

Let us see how the two cases were presented. In the Lamb case, the plaintiff, having shown a non-delivery of the goods, rested. The defendants, “after proving that the loss had occurred by fire, proposed to rest their case,” but the court required that they should also show that the destruction by fire was not caused by negligence on their part. This was held to be erroneous.

In the Burnell case, the plaintiff having shown the non-production of the trunk, gave no further proof; and it was found as a fact that the loss occurred through the want of ordinary care by the defendants.

A casual reading of these cases left me in some doubt if they could be reconciled; but having occasion to examine them in the case of Mangin v. Dinsmore (35 Supr. Ct. R. 182), I came to the conclusion that they were to be distinguished.

The special contract in the Lamb case relieved the company from liability absolutely, unless there was negligence. So that upon showing that the loss was within the exemption, the company was absolved, unless it was shown that the loss was attributable to their negligence. In that case, it is obvious that the negligence must be shown by the party charging it, and cannot be inferred or implied from the' mere non-production of the bailment. In other words, it could not be implied that it was negligently lost in or by the fire.

There was no special contract in the Burnell case, and nothing to exempt the company from liability absolutely. The law held them absolutely liable, and if they failed to produce and deliver the subject of the bailment when demanded, they could only escape liability by showing a loss of the subject, and a loss of it through no fault of their own. That cast the burthen of excusing the loss upon the bailee.

In the case at bar there was the common-law liability of a warehouseman. He was liable for the goods absolutely, unless they had been lost or destroyed through no fault of his own. The plaintiff had shown enough, ■grima facie, when he proved the non-delivery of the goods. Their loss must be accounted for by the bailee. That they were stolen, or destroyed by fire, or otherwise taken from the bailee, would not of itself relieve him from liability to the bailor. He must, show in addition that the loss, however it may have occurred, was not caused by any want of proper care and diligence on his part. And this absolute liability, except the loss is excused, distinguishes this from the Lamb case, and reconciles it with the Burnell case. Mere proof that the goods had been stolen was not enough. A larceny did not of itself relieve the warehouseman. If it was attended by no negligence on his part, it' would; and that he must show. Having shown the : bestowment of suitable care, then the larceny of the goods would be available as a defence.

The mere statement of the nature of the bailee’s • liability points very clearly to where the burthen of proof rests. He is bound to use ordinary and reasonable care, and is relieved from liability if that be shown.

It is true, the court, in the Lamb case, affirms a general principle which,, if taken disconnected from the facts, must be considered as overruling the case of Burnell. Thus the court say (p. 278): “The question is, whether in case of loss by a bailee for hire the bailor can recover, upon simple proof of loss, unless the bailee shall prove that he was free from all negligence contributing to such loss, or whether the bailor must go further and prove that the loss was caused by the negligence of the bailee.” And then it is said, “ the bailor cannot recover without affirmatively proving that the loss was caused by the negligence of the bailee.”

It cannot be that this, as a general principle, was intended to apply to the ordinary case of bailment, but to the peculiar liability of the bailees under the special contract with the bailors in that case. It is erroneous to say a bailee for hire is liable for negligence. He is liable for not delivering the subject of the bailment, and is excused if it has been lost without fault or want of care on his part. The contract of the bailee is that he will deliver to the bailor the property on demand. The refusal or neglect to deliver is the gravamen of the action, and the excuse for not delivering is the defence. But, as we have seen, the loss standing by itself is not a defence. It must be a loss unaccompanied by any fault of the bailee; and he proves, prima facie, the absence of such fault by showing the exercise of ordinary care. The railroad company were not to be liable if the property was destroyed by fire. Having shown the loss, they were discharged, unless a new liability arose out of their negligence. In that case the negligence became the gravamen of the action. But without the special contract, the loss by fire would not alone have excused the non-delivery. The company would have had to show that they had given careful attention to the property, and thereby that its loss was not caused by their neglect.

The case of Lamb must therefore be regarded as only applicable to the facts in that case, and as not settling a principle in conflict with the decision in the Burnell case.

Some of the cases cited in the opinion in the Lamb case mark the distinction I have endeavored to draw. In Railroad Co. v. Reeves (10 Wal. 176), the loss was through the act of God, which exempted the carrier from liability (as did the fire in the Lamb case), unless there was negligence; and the court say (p. 190): “if after he has excused himself... it is charged that his negligence contributed to the loss, the proof of this must come from those who assert or rely on it.” So in French v. Buffalo, N. Y. & E. R. R. Co. (4 Keyes, 108), there was a special contract (“ owneds risk”) limiting the responsibility. But the court held the company was liable for negligence only; they say (p. 115), “when the defendants did show in explanation that the goods were broken in consequence of the cars running off the track ... he brought the case within the purview of the exemption contained in the contract,” and then could be made liable for want of due care. Schmidt v. Blood (9 Wend. 268), and the cases cited in note to Platt r>. Hibbard (7 Cow. 500), cannot perhaps be reconciled with the other cases, yet in the charge of Walworth, Oh. J., in Platt v. Hibbard, the court put the burthen of proof on the bailee, “to show that the loss did not happen in consequence of his neglect to use all that care and diligence on his part that a prudent and. careful man would exercise in relation to his own property.” The court in banc, however, did not pass on the question. Newton v. Pope (1 Cow. 109) was case for misusing a hired horse, and Schmidt v. Blood (supra) may be said to rest-on Finucane v. Small (1 Esp. N. P. R. 315), where the liability was for gross negligence only.

The examination which I have given of the several cases where the especial question now before us is considered, has satisfied me that the cases of Schwerin V. McKie, and Burnell v. Gen. & H. R. R. R. Co. (supra) are not to Be considered as overruled or affected By the Lamb case; and that, therefore, the views entertained and expressed By the learned judge at the trial, .having Been in accordance with those cases, the exceptions of the defendant were not well taken.

The Burthen of proof rested, therefore, upon the defendant, and taking that Burthen upon himself, he endeavored to show, that the loss of the goods could not Be attriButaBle to any want of proper care on his part, But to causes which no provision, in the exercise of ordinary prudence, could have avoided.

I think, in the first place, that it was clearly established that the property had Been stolen. There is no reasonable ground for doubt, that the warehouse had Been Burglariously entered in the night-time, and one entire case, and part of the contents of the other case, had Been abstracted. The evidence to establish the Burglary is without contradiction, and convincing, and left the jury at liberty to adopt no other theory.

Having shown the manner of the loss, it Became incumbent on the defendant to go one step farther, and show that it was not caused By his neglect.

Evidence was thereupon given By the defendant, to the effect that the warehouse was constructed in the most substantial manner. It was of Brick, with thick walls, five stories high; iron doors and shutters, and with tin roof with scuttle secured By Bolts and chains and Bars. It had Been examined By the superintendent of the government warehouse department, and accepted and approved By the government as one of its bonded warehouses. The defendant employed a night-watchman, whose duty it was to guard and protect the Building and property. Everything was done to protect the goods that could reasonably Be done. At night the doors and windows were closed, barred, and Bolted, and the Building watched. I do not repeat the evidence. It is long, circumstantial, and clear. I have examined it attentively, and I am satisfied it entirely exonerates the defendant from fault. It seems to me, that every ordinary precaution had been taken, as well in the construction, arrangement, and fitting up of the building, as in the oversight of the property in it, that can be required of a warehouseman. The evidence was without any substantial contradiction, and I cannot see how it could have been disregarded by the jury. To require further evidence, of proper care, than was given in this case, would be to impose a duty upon warehousemen, and bailees generally, which the law does not recognize as the measure of their responsibility. It would be to require them to do more than the most careful and prudent are supposed to do for the safety and protection of their own property, a length to which I believe the liability of bailees has not heretofore been carried.

The most that can be said against the defendant is, that after the burglary was discovered to have been committed, by breaking through the roof, it suggested that a stronger roof might have prevented the breaking ; or that the adjacent house, through or from which the burglars gained access to the roof, should have been watched. These however are not the tests; but the tests are, was the condition of things, before or at the time of the burglary, such as would satisfy a prudent man of their fitness and sufficiency to protect the property ?

The evidence, therefore, in my judgment, brought the defendant within the exemption of his liability, and, upon it, the verdict should have been in his favor.

We might set aside the verdict as being against the clear weight of the evidence; indeed as being without any evidence whatever to sustain it; but the motion, at the close of the trial, to dismiss the complaint upon the whole of the evidence, makes it, as well, a question of law*.

We think that motion should have been granted. It embraced the ground already stated, that the evidence could not support a verdict for the plaintiff. In that case the complaint should have been dismissed.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant, to abide the event.

Barbour, Ch. J., and. Yah Yorst, J., concurred.


author: By the Court.—Freedman, J. Barbour, Ch. J. (concurring).

text:
    ELIZABETH A. COCKEY et al., Plaintiffs and Appellants, v. FREDERICK M. N. HURD, Defendant and Respondent.
    Before Barbour, Ch. J., and Freedman, Sedgwick, and Van Vorst, JJ.

      Decided May 3, 1873.
    Review of statutes providing for, and authorizing, the deposition and affidavit of any witness to be taken for use on a motion, whenever the witness has refused to voluntarily make the same (1 R. S. 554, §§ 24, 25; Laws of 1840, chap. 276, § 3 ; Code, § 401, subd. 7).
    Parties to the action, as well as witnesses, are included by the words “ any person ” in subdivision 7 of section 401 of the Code. There is no such repugnancy between section 389 and section 401, as demands a restricted interpretation of the words “any person,” contained in the latter, and in its construction, the fact that the said 7th subdivision was enacted long after § 389 may be considered, and in case of any conflict between them it may be properly concluded that the subsequent enactment of the 7th subdivision operates as a modification of § 389 pro tanto. The necessity for the application must fully appear by a statement of the facts and circumstances duly verified and set forth in the motion papers, otherwise the motion will be denied.
    Appeal from an order of Special Term, vacating and setting aside an order of reference to take defendant’s affidavit for use on a motion under section 401 of Code,

      S. B. Brownell and John McDonald, for appellants.

      Charles C. Bigelow, for respondent.
   By the Court.—Freedman, J.

The sole question argued on this appeal was as to the power of the court to appoint a referee to take the affidavit or deposition of a party for the purposes of a motion.

Prior to the Revised Statutes the courts possessed no power to compel the making of an affidavit to "be read on a non-enumerated motion; and the practice was either to trust to voluntary affidavits or to award a feigned issue (Bacon v. Magee, 7 Cow. 515, and note).

In the revision of the statutes made in 1830, this defect was pointed out "by the revisers, and pursuant to their suggestion a statute was passed "by which it was provided, that whenever there shall be a motion or other proceeding in the Supreme Court, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony. And such witness could be subpoenaed to attend and testify before such commissioners in the same manner as before referees, and with the like effect; and obedience to such subpoena was enforced in the same manner (1 Rev. St. 554, §§ 24, 25).

In 1840 another act was passed, by which it was enacted that whenever there shall be a motion or proceeding pending in the Superior Court of the city of Hew York, in which it shall be necessary for either party to have the deposition of any witness who may be within the jurisdiction of said court, and who shall have refused to make his deposition voluntarily, the court may issue a summons requiring said witness to attend before a judge thereof to make his said deposition, and that obedience to such summons may be enforced as in case of a subpoena issued by said court. This statute was also made applicable to the Court of Common Pleas (Laws 1840, chap. 376, § 3).

By chapter 463 of the laws of 1847, which is entitled, “An act to authorize parties in civil suits, at their election, to obtain the testimony of the adverse party,” it was further provided that any party in any civil suit or proceeding, either in law or equity, may require any adverse party to give testimony under oath in the same manner as any other competent witness, either orally, upon the trial, or under a commission, or conditionally, or for the purpose of having Ms testimony perpetuated.

The Code abolished the action to obtain discovery, under oath, in aid of the prosecution or defence of another action (§ 389), and sustituted therefor the examination of a party as a witness on behalf of the adverse party ; so that under it a party may examine his adversary as a witness, in the same manner as any other witness, either at the trial, conditionally, or upon commission (§ 390), and the examination, instead of being had at the trial, may even be had at any time before trial, at the option of the party claiming it (§ 391). The examination, when thus taken before trial, is to be filed in the same manner as the examination of a witness taken de hene esse is required to be filed, and may thereupon be read by either party on the trial (§ 393).

The Code, as originally enacted, also provided that no person offered as a witness should be excluded by reason of his interest in the event of the action (§ 351 of 1848). -But the legislature did not stop here, and by the amendments of the Code in 1857 a party, except in a few specified cases, was made a competent witness for himself.

¡NTotwithstanding these progressive changes in the law, the courts held, up to February, 1863, that no power existed to compel a party to make an affidavit to be read on a motion; and this ruling was invariably justified by' the supposed prohibitory language of § 389 of the Code, which was, and still is, do the effect that no examination of a party shall "be had on "behalf of the adverse party, except in the manner prescribed in the chapter to which said section belongs (Huelin v. Ridner, 6 Abb. 19 ; Palmer v. Adams, 22 How. 375).

The legislature thereupon passed the 7th subdivision of section 401 of the Code, which is as follows:

“When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court may, by order, appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee, the same as before a referee to whom it is referred to try an issue. And the fees "of such referee for such service shall be three dollars per day..”

Since that time this court has assumed that the enactment of this subdivision had cured the defect, and has acted accordingly (Moses v. Banker, 7 Rob. 131); arid in Fisk v. the Chicago, Rock Island and Pacific R.R. Co., 3 Abb. H. 8. 430, the Supreme Court, at special term, so held. The Court of Common Pleas, however, expressed a contrary opinion in Hodgkins v. The Atlantic and Pacific R.R. Co. (5 Abb. N. S. 73); and that case, and the one now before us, are the only instances in which the power of the court to order the examination of a party in the manner last referred to has been questioned.

After a careful examination of the question, we have no doubt as to the existence of the power. The former statutes contain the word “ witness,” and in them, as well as in the chapters of the Code that relate to the competency and examination of parties and witnesses, the obvious distinction between a party and a witness is carefully preserved. The said 7th subdivision of section 401, on the other hand, uses the word, “person,” which according to the lexicographers includes every living human being. Lord Danman’s act for improving the law of evidence, passed August 33d, 1843, enacts : “No person offered as a witness shall hereafter be excluded by reason of crime or interest, . . . but every person so offered may be admitted, . . . provided that this act shall not render competent any party to any suit, etc., etc.; ” thus showing that the word “ person” does include a party unless expressly excepted. The same express exception will be found in many of our statutes, whenever a party is intended .to be excepted (see particularly §§ 398 and 399 of the Code). ¡Now as prior to the enactment of the said seventh subdivision the courts did possess the power to compel the examination of every person competent as a witness, with the single exception of a party, and no exception in favor of a party is made therein, and in as much as the law-making power must be presumed to have intended something by its passage, the logical conclusion seems to be that parties as well as witnesses were intended to be covered by that provision. This will still more clearly appear when it is considered, that under the former practice the affidavit of a party was admissible, even before the statute of 1840, in the party’s own behalf, in most, if not all, matters heard and determined on affidavits, and could be read against him after it had been made ; and that the decree awarding a feigned issue frequently directed, among other things, that the plaintiff or the defendant should attend to be examined (Graham’s Pr. 496). For these reasons, and the further one, that the history and course of the legislation of this State plainly shows that it has at all times been the settled policy of the legislature as the representative of the progressive power of the State, to extend the right of the examination of parties as to matters connected with the issues, as well as to such as arise upon collateral inquiries (see Winston v '. English, Special Term, February, 1873), we can come to no other conclusion than the one above indicated. The explanation as to the real object of the amendment which Mr. Justice Barrett attempted to give in 5 Abb. N. S. 75, namely, that it was intended thereby to substitute an expeditious and simple process for the cumbersome and tedious commission so long in rogue in the Supreme Court, rests upon too narrow grounds. Other courts did possess an expeditious process by simple summons, and the said 7th subdivision is made applicable in express terms to all the courts of record in the State. Surely no valid reason can be perceived upon grounds of public policy, why a party who asks a favor from the court upon his own affidavit, should not be called upon by his adversary, in case of necessity, to make to the court explanatory or qualifying statements consistent with the truth.

Section 389 of the Code stands no longer in the way, if it ever did. There is no such repugnancy between this section and the said 7th subdivision as calls for a restricted interpretation of the word “person” contained in the latter. The prohibition contained in the first relates to an examination upon the merits of the action, to an examination to procure evidence as to issuable facts, while the said 7th subdivision relates to the taking of an affidavit or deposition to be used on a motion, and consequently to an examination upon collateral questions arising during the progress of the suit. Besides that, the 7th subdivision referred to was enacted long after the 389th section, and in case of conflict would operate as a modification pro tanto. Section 389 was enacted to do away with bills of discovery in aid of actions pending, and it was for that reason provided that no examination of a party should be had, except in the cases, for the purposes, upon the conditions, and with the consequences specified in the succeeding sections of the same chapter. But the examination thereupon substituted relates solely to the issues, and when thus construed there is no conflict between the 389th and the 401st sections of the Code.

We are therefore clearly of the opinion that the power contended for by the appellants exists in the court. But, on the other hand, we cannot sanction an attempt to procure the examination of a party under the subdivision in question upon papers that do not disclose the necessity for the application. Such necessity must be made to appear by a statement of facts and circumstances. Upon this point the motion papers, as pointed out by the learned chief justice, are radically defective, (see also 7 Robt. 131), and in consequence of such defect the order appealed from must be affirmed.

Order affirmed with ten dollars costs, with leave to appellants to renew motion upon payment of costs.

Sedgwick and Yah Yorst, JJ., concurred in the foregoing opinion.

Barbour, Ch. J. (concurring).

This is an appeal from an order of the Special Term, founded upon affidavits and notice of motion setting aside and vacating an ex-parte Chamber order, which appointed a referee to take the affidavit or deposition of Frederick FT. Hurd the defendant, under the 401st section of the Code.

As the Chamber order in question does not recite the papers on which it was founded, as required by the rule of this court; such order would, probably, have been set aside as irregular, if that defect had been pointed out in the motion papers, but it was not. The Chamber order, however, appears to have been founded upon “affidavit,” and there are two affidavits bearing as early a date as the order, and which may be assumed to be the “affidavit” mentioned on the order. One of them is made by a public notary, who states that on a certain day he presented an affidavit to the defendant, and requested him to verify it, and on his refusing to do so, offered to correct the same if incorrect, and that the defendant refused to verify it or to have it corrected.

The other affidavit, which is that of the attorney in the action, states the legal opinion, that it is necessary for the plaintiffs to use the defendant’s affidavit upon a motion, and that the affiant believes the facts set out in the proposed affidavit are within the knowledge of the witness. But he states no facts tending to prove that his belief in regard to that matter, or his legal opinion, was well founded, nor did either affidavit disclose the nature of the action or defence or the subject-matter, even of the proposed affidavit. Certainly, then, the papers upon which the order at Chambers was made were insufficient to warrant its omission, and for that reason the court might properly have set it aside.

But the learned judge who presided at Special Term, vacated the order upon the ground, that although the 7th subdivision of section 401, authorizes a party to an action to obtain in this manner the affidavit or deposition of “any person,” that authority does not extend to the examination of a party opponent, inasmuch as the 389th section declares that no examination of a party to an action shall be had on behalf of the adverse party except in the manner prescribed in the sixth chapter, i. e., as a witness in the cause.

As the 7th subdivision of section 401, was inserted in the Code as an amendment long subsequent to the enactment of section 389, it may well be that the former section ought to be considered as a modification, pro tanto, of the latter, to such an extent, at least, as will permit a party to require his adversary to make an affidavit of such facts, proven" to be within his knowledge, as may appear to be necessary for the purposes of a motion, provided the facts thus sought to be discovered are of such a nature that they cannot be established upon the examination of the party as a witness under the provisions of the sixth chapter.

It is not necessary to consider that question here, however, as the affidavits upon which the original order was based are wholly insufficient even upon that theory.

The order appealed from should be affirmed, with costs.