text:
    Mathilde Paulitsch, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    The sale of a railroad ticket before the arrival of a train, or when it is at the station, does not give the purchaser a specific right to take that particular train, so that it must be held long enough for him to go upon it. The ticket gives no right to delay the train, but simply a right to take any train bound to the passenger’s destination which stops at that station, provided he presents himself in time; and upon the passenger is imposed the duty of presenting himself in time or waiting for a succeeding train.
    Plaintiff came to a station on defendant's road late for a train she desired to take. The train was at the station when she purchased her ticket, and she came out upon the platform, after the signal to start had been given and after drop-platforms, which were let down to connect the car and station platforms, had been raised, and just as the engineer was about to apply the steam, and at a manient when she could not see the conductor who, with the Irakeman, had stepped on the train and was not aware of her presence. All passengers had left the train and all those in sight desiring to take it had gone aboard when the signal was given. As plaintiff took hold of the rail of a car and attempted to get on to the train it started and she was thrown down and inj ured. In an action to recover damages for the injury, defendant’s counsel requested the court to charge that “ When the people who desired to stop * * if * had left the train and the persons who were there at the station platform had entered on the train, the defendant had the right to raise the drop-platform and start the train.” This the court refused to charge, save with this qualification, “ provided that they had given each person having a right to enter upon that train as a passenger the opportunity to get on board.” Held, error.

      Paulitch v. W. 7. O. <fi H. B. B. B. Oo. (18 J. & S. 241), reversed.
    (Argued February 12, 1886;
    decided April 20, 1886.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made April 7,1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. (Reported below, 18 J. & S. 241.)
    This action was brought to recover damages for injuries received by plaintiff in attempting to get upon a train on defendant’s road.
    The facts so far as material are stated in the opinion.

      Frank Loomis for appellant.
    Taking the plaintiff’s account of what took place between her and the station agent to be true there was no assurance, no contract that the train would be delayed to receive her. (Solomon, Admix, v. Man. R. Co., 31 Hun, 5 ; Mayes v. Forty-second St. R. R. Co., 97 N. Y. 259.) Plaintiff’s plain, obvious and undeniable duty was to have waited for the next train or taken some other means of conveyance, and she cannot recover for injury, of which she took the" plain and obvious risk. (Phillips v. Rensselaer & S. R. R. Co., 49 N. Y. 177 ; Eppendorf v. B. G. & N. R. R. Co., 69 id. 195.) The defendant was entitled to have its second request, that any negligence, however slight, on the part of the plaintiff, would defeat a recovery, charged without qualification, and the exception to the qualification was well taken. ( Wilds v. H. R. R. R. Co., 24 N. Y. 430, 442; Owen v. H. R. R. R. Co., 35 id. 516.)

      Christopher Fine for respondent.
    A passenger has the right to assume that the railroad company has performed its duty, and that the platform is safe. ( Weston v. N. Y. E. R. R. Co., 73 N. Y. 595; Russell v. N. Y. C. & H. R. R. R. Co., 84 id. 241, 246; Terry v. Jewett, 78 id. 338, 344, 345 ; Murphy v. N. Y. C. & H. R. R. R. Co., 13 N. Y. Weekly Dig. 213, 214; Shearm. & Redf. on veg., § 262; Gordon v. Grand St. & N. R. R. Co., 40 Barb. 546, 550; Brien v. Bennett, 8 C. & P. 724.) When passengers are getting on or off a train, suddenly to put it in motion, so as to endanger their safety, without giving any signal, is an act of negligence on the part of the railroad. (Keating v. N. Y. C. R. R. Co., 49 N. Y. 673, 674; Milliman v. N. Y. C. & H. R. R. R. Co., 66 id. 642; Poulin v. Broadway & Seventh Am. R. R. Co., 61 id. 621; Hazman v. Haboken L. & Imp. Co., 50 id. 53, 61.) A carrier must allow his passengers a reasonable time in which to get on or off. * * * He is responsible for any injury resulting from the slightest motion of his vehicle, during the entrance or exit of a passenger. (Shearm. & Redf. on Heg.,- § 276 ; Fairmount, etc., R. R. Co. v. Stutter, 54 Penn. St. 375 ; Dickson v. B'way, etc., R. R. Co., 33 N. Y. Supr. 330; Colt v. Sixth Am. R. R. Co., id. 189; Mulhado v. B'lyn City R. R., 30 id. 370; Burrows v. E. R. R. Co., 63 id. 556-559 ; Russell, Adm'x, v. N. Y. C. & H. R. R. R. Co., 84 id. 241,246; Milliman v. N. Y. C. & H. R. R. R. Co., 66 id. 642 ; Wharton on Eeg., § 648.) The plaintiff was entitled to recover for all past, present and future pain and suffering,' and also for all physical injuries sustained by her, resulting in bodily deformity, or destroying and impairing the fnll and free use of her limb and power of locomotion as affected by the loss of her foot, and the amount of damages given should be commensurate therewith. (Faber v. N. Y. C. R. R. Co., 49 N. Y. 42, 44, 45; Curtis v. Roch. & S. P. R. R. Co. 18 id. 534, 541, 542; Drew v. Sixth Ave. R. R. Co., 26 id. 49, 52, 53; Ransom v. N. Y. & E. R. R. Co., 15 id. 415 ; Watson v. N. Y. C. R. R. Co., 62 Barb. 364.) A carrier must allow his passengers a reasonable time to get on and off the ears or other conveyance. (Shearm. & Bedf. on Meg., § 276; Fairmount, etc., v. Stutter, 54 Penn. St. 375; Southern R. Co. v. Kendrick, 40 Miss. 374; Dickson v. Broadway,etc., R. R. Co., 33. N. Y. 330; Slackdale v. Lanoshill, etc., R. Co., 11 W. R. [Exch.] 650; Jeffersonville R. R. Co. v. Kendricks, 26 Ind. 228 ; Keating v. N. Y. C. R. R. Co., 49 N. Y. 673; Milliman v. N. Y. C. & H. R. R. R. Co., 66 id. 642; Brassell, Adm'x, v. N. Y. C. & H. R. R. R. Co., 84 id. 241, 246; Burrows v. E. R. R. Co., 63 id. 556, 559 ; Wharton on Meg,, § 648.) A passenger is not guilty of contributory negligence when he takes only such risks as under the circumstances a prudent man would take. (Shearm. & Bedf. on Meg., §§ 282, 283; Willis v. L. I. R. R. Co., 32 Barb. 398, 403 ; 34 N. Y. 670, 675 ; Sheridan v. B'lyn C. & H. R. R. Co., 31 id. 39, 43; Ernest v. H. R. R. R. Co., 35 id. 9, 26, 27 ; Keating v. N. Y. C. R. R. Co., 3 Lans. 469, 473.)
   Finch, J.

The magnitude of the verdict rendered against the defendant; the remarkable body of evidence unsuccessfully given in its favor; and the extraordinary incident which marked the close of the trial, tend to make any errors in the charge of the court to the jury of more than common importance and to justify an inference that they worked harm to the defeated party.

Certain facts in the case are entirely undisputed, and upon them the question arises most important to consider. The tram arrived at the One Hundred and Tenth street station, either precisely upon its schedule time, or a little behind that time. Ho one among-all the witnesses pretends, and no circumstance proved indicates, that it reached the station in advance of its appointed time. Upon its arrival it stopped and remained stationary until all the passengers desiring to leave the train had left it and disappeared from the conductor’s sight, and all those upon the platform who desired to take the train had gone into the cars; and then when the conductor, who stood watching the exit and ingress of his passengers, observed that all had been accommodated, and that the station platform was cleared and empty, and that no conceivable duty of delay remained, he' gave the signal for starting and turned to enter or entered the car; the engineer drew in his head and pulled his lever; and the train started. At that precise moment, according to her own account of the accident-, the plaintiff had reached one of the cars and taken hold of its rail and put one foot on its step, and then, and not before, the train moved and she was thrown down and seriously injured. She was a belated passenger as clearly appears from her statement taken by itself. When she bought her ticket at the office before ascending the stairs she asked if the signal bell rung by electricity from One Hundred and Twenty-fourth street had sounded, and was told that it had, and that she had better hurry up. This was a plain intimation that she was late, and we may readily suppose that she moved up the stairs with some degree of rapidity and haste. Just as she reached the top step of the flight she says that she met two gentlemen, and asked them “ did you miss the train ? ” The inquiry shows her consciousness that the cars had started, or that she knew or feared, that she was late. If this question was asked, as she says it was, just as she was going up the final step to the platform, she must have been at that moment in plain sight of the cars. If they were then, as consistently with her story they must have been, motionless and waiting, her question is inconceivable. If at that moment they were in motion, her inquiry would have been natural. As she stepped upon the station platform, and but a few feet from the train, she admits that no conductor or brakeman was in sight. She was no stranger to the scene. She had taken the train at that point very many times, and always before had seen present the conductor and brakemen. The warning of the ticket-agent, her inquiry of the two passengers, and her observation of the vacant platform, all demonstrate that she was late and in haste, and show a consciousness on her part that if the train was not actually moving, it was at least about to move. But since the verdict of the jury involves a finding that the cars were not in motion, and that she had no reason to believe that they were about to start, we are permitted only the inference which at least harmonizes' much of the testimony, and is inevitable, if the plaintiffs story be true, that she came upon the platform after the signal to start had been given, and just as the engineer was about to apply the steam, and at a moment when she could not see the conductor, and he was unaware of her presence. On this state of facts the defendant, as was its right, presented several propositions to be charged which were granted until the last was reached. That was stated thus: “ When the people who desired to stop at One Hundred and Tenth street station had left the train, and the persons who were then on the station-platform had entered on the train the defendants had the right to raise the drop platform and start the train.” This was in all respects an entirely sound -and correct proposition. The object of stopping was to discharge and receive passengers, When that object was fulfilled, the station platform cleared, and nobody left to be accommodated so far as the conductor could see or know, it was not only his right but his duty not to linger' but to give the signal for starting. The proposition relatively to the admitted facts served to eliminate one possible ground of negligence from the minds of the jury. That there may have been others is of no consequence. This particular one, that the defendant had no right to start the train at the moment when he did, the defendant had a right to dissipate by the mouth of the court. The trial judge refused to charge this proposition, except with a qualification which annulled and practically destroyed it, or at least may have dangerously misled the jury. That qualification was provided that they had given each person having a right to enter upon that train as a passenger the opportunity to get on board.” This proviso could bear upon the facts of the case only in one way. The jury might naturally understand it to mean that when the plaintiff had bought her ticket at the office below she acquired upon the instant the right to take passage on this particular train and the company were bound to know that she was coming and hold the train until her arrival, and so the conductor was negligent in starting the train at the moment when he did. Unless it meant this we can conceive of no possible meaning pertinent to the case, in which event it amounted to a refusal to charge the proposition requested. The jury thus might understand that they were told as matter of law that the sale of a railroad ticket at a ticket office before the arrival of a train gives a specific right to the purchaser to take that particular train which is then at the station or is about to arrive, and that it must be held long enough for such passenger to go upon it, and since, in this case it was not so held, the jury might find it an act of negligence in the conductor to start it when he did. That assumes that the plaintiff’s ticket gave her a special right to take that train. There is not a particle of proof of any such contract. The ticket gave her a general right to take any train bound to her destination which stopped at that station, provided she presented herself in time and did not require its delay for her special benefit. It gave her no right to delay the train at all. It imposed upon her the duty of presenting herself in time or of waiting for a succeeding train. Suppose that when she bought her ticket the train above was motionless at the station and while she was ascending the stairs it was moving with the platforms up so that she could not take it. Is it contended that she could treat that as a breach of her contract with the company and as a refusal to carry her, which would found an action for damages ? If the doctrine of the qualification be sound it is negligence, as matter of law, to sell tickets without closing the office long enough before the departure of the train to enable every purchaser to ■ reach it, and it must start upon signal from the ticket office that such time has been given. Ho such rule has ever been adopted. At the ticket office in question the customary way •was to open the window at any time for the sale of tickets, or the answer to inquiries, and that fact was drawn out by the plaintiff’s counsel. The purchase of the ticket gives no right to the passenger except upon the condition of presenting herself for passage before the signal is given for a start, and, if she comes after that, it is not negligence as against her that the train starts in obedience to it. Whether there should have been gates to prevent the passage of belated passengers, or the officers of the train should have watched the platform to warn them off, has nothing to do with the present question. It was the defendant’s right to eliminate from the case one ground of negligence, and that right was not only denied but in such a manner as to make that a prominent ground of recovery.

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

Eapallo, Miller and Earl, JJ., concur; Euger, Ch. J., Andrews and Danforth, JJ., dissent.

Judgment reversed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    William G. Ward, Appellant, v. The Town of Southfield et al., Respondents.

      It seems that where there is fraud, not in the subject of the litigation or in any thing involved in the issue tried, but fraud practicedupon a party to an action, or upon the court, during the trial, or in prosecuting the action, or in obtaining the judgment, it may in a proper cáse be attacked collaterally and set aside and vacated on account thereof. Before, however, a regular judgment can be thus assailed the proof should be clear and very satisfactory.
    Where fraudulent concealment of a fact is relied upon for the purpose of impeaching and setting aside a judgment regularly obtained, it must be an intentional concealment of a material and controlling fact, for thq purpose of misleading and taking an undue advantage of the opposite party.
    It is not incumbent upon a party to a litigation to reveal to the opposite party any infirmity in his case where there is no relation of confidence between them; he is simply bound not to mislead his opponent by any positive or actual fraud, and not to conceal, for the purpose of perpetrating a fraud, such facts as good faith and common honesty require him ' to-reveal.
    A warrant with assessment-roll annexed was issued to plaintiff as collector; he neglected to collect a portion of the taxes appearing on the roll. In consequence an action was brought by the supervisor of the town against him and the sureties upon his bond, and a recovery was had therein, which plaintiff paid. He thereafter brought this action to vacate and set aside the judgment and to recover back the money paid, upon allegations that the affidavit attached to the original assessment-roll was so defective as to render the assessment void, and the persons assessed not legally bound to pay, which defect was not discovered by plaintiff until after the payment of said judgment, but was fraudulently concealed from him by the supervisor, to whom it was known when he commenced said action against plaintiff; so that the latter could not avail himself thereof as a defense in said action. The warrant was regular on its face and it did not appear that any tax payer refused to pay or claimed that the taxes were illegal. The original assessment-roll with affidavit attached was lost. The supervisor before he commenced his action obtained a copy of the affidavit, and had it during the entire time of the pendency of said action and knew of its contents. It did not appear, however, that he knew the defects were such as to serve as a defense to his action, and there was nothing in the defense which called his attention to it, or in any way required its production, and he had no reason to suppose at that time that the origihal was lost, or that the defects were unknown to the defendants in that action. Held, the evidence j ustified a finding that the contents of the assessors’ certificate and affidavit “ were not falsely or fraudulently concealed from the plaintiff” and the invalidity Of the assessment was not known to the supervisor; and that the relief sought was properly refused.
    (Argued March 12, 1886;
    decided April 27, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made the second Monday of September, 1883, -which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.
    This action was brought to vacate and set aside a judgment rendered in favor of defendant Greenfield as supervisor of the town of Southfield against plaintiff and the sureties on his bond as tax collector, and to recover back moneys paid by plaintiff in satisfaction of said judgment. The alleged ground for the relief asked was fraud on the part of Greenfield.
    The material facts are stated in the opinion.

      Hamilton Wallis for appellant.
    The concealment by the defendants of the original assessment while actively engaged in compelling the payment by Ward of uncollected taxes, which were chargeable against him only in case the original assessment was valid, was such a fraud on Ward as to invalidate the judgment recovered against him and authorized the recovery in equity of the amount paid by him under it. ( Verplanck v. Van Buren, 76 N. Y. 268; Sckiffer v. Dietz, 83 id. 307; Rawdon v. Blatchford, 1 Sandf. Ch. 344; Clark v. Baird, 9 N. Y. 197; Riker v. Mayor, etc., 9 Vroom, 225, 228; Mead v. Bunn, 32 N. Y. 278; Valentine v. St. Paul, 33 Alb. L. J. 238 ; Williamson v. Brown, 15 id. 354; Ware v. Egmont, 31 E. L. & E. 89, 97; Hoyt v. Sheldon, 3 Bosw. 295; McClure v. Town of Oxford, 4 Otto, 432.) A party is under no obligation to investigate and verify statements, to the truth of which the other party to the contract, with full means of knowledge, has deliberately pledged its faith. (Mead v. Bunn, 32 N. Y. 275, 280 ; Clark v. Rankin,. 46 Barb. 570.) The assessment and levy of the tax in question were void and of no effect. (Laws of 1851, chap. 176, § 8 ; Van Rensselaer v. Whitbeck, 7 N. Y. 517; Westfall v. Preston, 49 id. 352; Greenfield v. Ward, 58 id. 401; Hinckley v. Cooper, 22 Hun, 253.) The warrant issued to the plaintiff was invalid and of no effect to impose any obligations upon the plaintiff. (McDonald v. Bunn, 3 Denio, 45; Cornell v. Barnes, 7 Hill, 35 ; Earle v. Camp, 16 Wend. 562; Forsyth v. Campbell, 15 Hun, 235.) Equity will relieve the plaintiff. (Reigal v. Wood, 1 Johns. Ch. 402; Story’s Eq. Jur., § 187; Williams v. Lee, 3 Atk. 223 ; Winthrop v. Sup’rs of Lane, 3 Dessaus. 325; Bateman v. Willoe, 1 S. & L. 201; Marine I. Co. v. Hodgson, 7 Cranch, 336 ; Cairo & F. R. R. Co. v. Titus, 27 N. J. Eq. 273 ; Hackley v. Draper, 60 N. Y. 88 ; Borden v. Fitch, 15 Johns. 421; Huggins v. King, 3 Barb. 619 ; People v. Eddy, 57 id. 593 ; Regina v. Ash. R. Car Co., 10 H. of L. Cas. 431; Foster v. Wood, 6 Johns. Ch. 90; Marine I. Co. v. Hodgson, 7 Cranch, 336 ; Dobson v. Pierce, 12 N. Y. 165 ; White v. Tommey, 4 H. of L. 334 ; State of Michigan
      v. Phœnix Bk., 33 N. Y. 27; Van Cortlandt v. Underhill, 17 Johns. 405 ; Dobson v. Pierce, 12 N. Y. 156.)

      George J. Greenfield for respondents.
    To authorize an action ■ to set aside a judgment for fraud in obtaining it, after the payment of it, the ■ fraud must be actual and positive as distinguished from constructive fraud or fraud in law. (Hunt v. Hunt, 72 N. Y. 227; Ross v. Wood, 70 id. 10; Smith v. Nelson, 62 id. 288; U. S. v. Throckmorton, 98 U. S. 61, 68; State of Michigan v. Phœnix Bk., 33 N. Y. 23 ; Wells’ lies Adjudicata and Stare Decisis, 298, § 375; Shank v. Shoemaker, 18 N. Y. 489 ; Pulver v. Harris, 52 id. 77, 78 ; McMichael v. Kelmer, 76 id. 39 ; Reeves v. Hogan, Cooke, 175, 179; Bench v. Sheldon, 14 Barb. 66 ; Gage v. Parker, 25 id. 141; Stevens v. Mayor, etc., 46 Sup, Ct. 276.) The plaintiff not having used due diligence, and having been guilty of loches in not discovering and availing himself of the defense in the ' former action, equity will not interfere. (Stillwell v. Carpenter, 59 N. Y. 423; Marine Ins. Co. v. Hodgson, 7 Cranch, 336 ; Floyd v. Jayne, 6 Johns. Ch. 482 ; Brennen v. Mayor, etc., 8 Daly) 426 ; Willard’s Eq. Jur. 160-3; Story’s Eq. Jur., §§ 894-8; Taliafero v. Branch Bk., 23 Ala. 755 ; Horner v. Fish, 1 Pick. 440; Wells’ Res Adjudicata and Stare Decisis, 298 ; Smith v. Lowry, 1 Johns. Ch. 320, 324 ; Hammill v. Grimm, 10 Abb. Pr. 150 ; French v. Gardner, 7 Porter, 549 ; Mark v. Candiff, 6 id. 24.) Even if this were an application in the original action for a new trial on the ground of newly-discovered evidence, it would be refused. (Stafford v. Bryan, 2 Paige, 45 ; Quinn v. Loyd, 1 Sweeny, 253 ; 1 G. & W. on New Trials, 473, 477; Fleming v. Hollenbeck, 7 Barb. 271; People v. Sup. Ct. of N. Y., 10 Wend. 285, 295 ; People v. Frank Marks, 10 How. 261 ; Leavy v. Roberts, 2 Hilt. 285, 287; Floyds. Jayne, 6 Johns. Ch. 482 ; Cole v. Cole, 50 How. 59 ; Fellows v. Emperor, 13 Barb. 92; Williams v. Baldwin, 18 Johns. 489.) In the absence of fraud there is no power in the court to grant the relief asked for in this action after the payment and satisfaction of the judgment. (2 Story’s Eq., § 1574 et seq. White v. Ward,
      9 Johns. 232; Bently v. Morse, 14 id. 468 ; Walker v. Ames, 2 Cow. 428, 429 ; White v. Merritt, 7 N. Y. 152 ; Homer v. Fish, 1 Pick. 440; Trustees v. Keller, 1 Ala. 408; Fuller v. Shattuck, 13 Gray, 72; Carter v. Canterbury, 3 Conn. 456; Tilden v. Gerdon, 1 N. H. 33 ; Boring v. Mansfield, 17 Mass. 394; Michigan v. Phœnix Bk., 33 N. Y. 23 ; Farrington v. Bullard, 40 Barb. 512, 518; U. S. v. Throckmorton, 98 U. S. 68, 69 ; Bruen v. Hone, 2 Barb. Ch. 586 ; Duncan v. Lyon, 3 id. 351, 357.)
   Earl, J.

In the years 1871 and 1872 the plaintiff was treasurer of the village of Edgewater, in the county of Richmond, and as such treasurer was collector of taxes oaf the part of the town of Southfield which was embraced within the limits of the village. In the month of January, 1872, there was issued to him, by the board of supervisors of the county of Richmond, a warrant whereby he was directed as such collector to collect the taxes which appeared in the assessment-roll annexed to the warrant. The whole amount of taxes which he was thus directed to collect was upward of §66,000. He collected all of that sum but about $4,000, which he neglected to collect, and in January, 1873, the defendant Greenfield, who was then supervisor of the town of Southfield, commenced an action against him and the sureties upon his bond to recover the amount of taxes thus remaining due and uncollected, and a recovery was had. From that judgment the defendants therein appealed to the General Term of the Supreme Court and from affirmance there to this court, and here the judgment was affirmed. (58 N. Y. 401.) After such affirmance Ward, the plaintiff herein, paid the amount of that judgment, with costs. Thereafter he claims to have discovered for the first time that the affidavit of the assessors, attached to the original assessment-roll, was so defective as to render the assessment illegal and void, so that no taxes were in fact legally imposed, and the persons assessed were under no legal obligation to pay them; and he claims that if he had been aware of the defect in the affidavit of the assessors he could have successfully defended the action. He then commenced this action to vacate and set aside the former judgment 'and to recover back from the defendants the money which he was obliged to pay in satisfaction of that judgment, on the ground that the defendant Greenfield was aware of the defect in the affidavit and of the invalidity of the tax at the time he commenced that action, and during the pendency thereof, and fraudulently concealed from the plaintiff his knowledge of such defect and invalidity, to the end that the plaintiff might not avail himself of the defense which such knowledge would have afforded him in that action. . He bases his right to recover in this action upon the ground that the former judgment was recovered against him by the fraud of Greenfield, and invokes the equitable jurisdiction of the court to give him the relief granted in,such cases.

Courts of equity have general jurisdiction to grant relief against fraud and to set aside all deeds, contracts and other instruments obtained by ^fraudulent practices; and the jurisdiction of the court to grant such relief extends not only to voluntary contracts inter partes, but also to judgments and decrees of courts. But the solemn judgment of a court should not be lightly interfered with. It is for the interest of the public, as well as of individuals, that there should be an end of litigation, and where parties have been lawfully brought into a court having jurisdiction of their persons and the subject of litigation, and have had opportunity to prosecute their claims and to defend their rights, and judgment has been regularly pronounced, while such judgment is not vacated or reversed, it concludes the parties thereto ; and a matter thus once litigated and adjudicated cannot be again brought in question. Such are the general rules which should not easily be evaded. A party defeated in a litigation may appeal from the judgment or move for a new trial, and, in a proper case, to vacate and set aside the judgment. These remedies are generally ample to protect all parties. But where there is fraud, not in the subject of the litigation, not in any thing which was involved in the issues tried, but fraud practiced upon a party or upon the court during the trial or in prosecuting the action, or in obtaining the judgment, then in a proper case the judgment maybe attacked collaterally, and on account thereof set aside and vacated. But before a regular judgment can be thus assailed the proof should be clear and very satisfactory. It is not sufficient merely to raise a suspicion or to show what is sometimes called constructive fraud, but there must be actual fraud. There must be by <pne party a false and fraudulent representation, or a fraudulent affirmative act, or a fraudulent concealment of a fact for the purpose of obtaining an undue and an unjust advantage of the other party and procuring an unjust and unconscionable judgment. It is not practicable nor possible to formulate a rule on this subject which will be sufficient to solve all cases; but where fraudulent concealment of a fact is relied upon for the purpose of impeaching and setting aside a judgment regularly obtained, it must be an intentional concealment of a material and controlling fact for the purpose of misleading and taking an undue advantage of the opposite party. It would not be wise or politic to carry the rule so far as to make it incumbent upon every plaintiff to reveal to the defendant any infirmity in his case, and to require every defendant to reveal to the plaintiff every infirmity "in his defense.' Where there is no relation of confidence between the plaintiff and the defendant the parties stand at arm’s length. They come into court as adversaries, and neither party is bound to make any revelation of his case to the other. The plaintiff must be prepared to prove all the facts constituting his cause of action and to meet any defense which the defendant may interpose; and the defendant must be prepared to establish any 'defense which he may have. Neither party can mislead the' other by any positive or actual fraud. Nor can he, for the purpose of perpetrating a fraud upon the other party, conceal" such facts as good faith and common honesty require him to reveal. These principles are illustrated in many cases to be foundin the books. (Patch v. Ward, L. R., 3 Ch. App. Cas. 203; U. S. v. Throckmorton, 98 U. S. 61 ; Smith v. Nelson, 62 N. Y. 286, 288 ; Ross v. Wood, 70 id. 8, 10 ; Hunt v. Hunt, 72 id. 217, 227; Verplanck v. Van Buren, 76 id. 247, 257.)

We have carefully scrutinized the evidence in this case and are satisfied that the findings of the court against the plaintiff were fully justified. The warrant which was issued to the plaintiff to collect taxes in the town of Southfield was regular upon its face. It was attached to a copy of the assessment-roll, and that copy did not contain a copy of the affidavit of the assessors. The warrant being regular upon its face was ample authority to protect the plaintiff in enforcing the collection of the taxes. It appears that he proceeded to collect the taxes under the warrant and received a large proportion of them which were voluntarily paid. It does not appear that any tax payer refused to pay or claimed to him that the taxes were illegal or that the assessment was void. So far as appears in the case, if he had discharged his duty he could have collected every dollar of the taxes on account of which judgment was obtained against him. It does not appear that even he had any suspicion of the invalidity of the assessment until after he had made his return to the county treasurer and the action of Greenfield was commenced, or was about to be commenced, against him, and then he sought to escape liability upon a technicality which had caused him no injury and interposed no obstacle to the collection of the taxes. In a certain sense, therefore, it may- be said that the judgment obtained against him was not "unconscionable or unjust. The claim made by him in the defense of that action was that the original assessment-roll was placed in his hands, and that to that there was no affidavit of the assessors, and that, therefore, the assessment was illegal and void. He gave the plaintiff in that action no notice that he claimed that there was a defect in the form of the affidavit. His claim was that there was no affidavit, and upon that issue the parties went to trial. It appears that at some time the original assessment-roll to which the affidavit was attached was lost. Prior to its loss, nearly a year and a half before he commenced the suit against Ward and his sureties, the defendant Greenfield had obtained a copy of the affidavit of the assessors, and at that time became aware of its contents, and he had that copy in his possession • at the time he commenced the action against Ward and his sureties, and it remained in his possession during the entire time of the pendency of that action. But it does not appear that he knew that the defects in the affidavit were such as to furnish to Ward a defense to the action against him. He was not asked concerning the affidavit, and there was nothing in the defense interposed in that action, or in the proceedings upon the trial thereof, which called his attention to it, or in any way required its production from him. So far as appears in this case, at that time he had no reason to suppose that the original assessment-roll was lost, or that the defects in the affidavit were unknown to the defendants in that action. There was no relation of confidence between him, and Ward. They were not agents but independent officers of the town and adversaries in the suit. (Lorillard v. Town of Munroe, 11 N. Y. 392; People v. Supervisors of Chenango, id. 563; People v. Auditors of Little Valley, 75 id. 316.) But the proof tends to show that at the time Greenfield commenced that action and during the prosecution thereof his attention was not called to the affidavit which was in his possession, and there is no proof whatever which required, even if it would justify, a finding that he fraudulently concealed the copy of the affidavit which he had for the purpose of obtaining an undue advantage of Ward or an unjust judgment against him, and the trial court found that the form and terms and contents of the certificate and affidavit of the assessors attached to the assessment-roll “were not falsely or fraudulently concealed from the plaintiff,” and that “the invalidity of said oath or certificate, or of the assessment of said taxes, or of the warrant issued to the plaintiff, was not known to said defendants, or either of them.” These findings, which have'been affirmed by the General Term, conclude us, and upon such facts the court properly refused to vacate or set aside the judgment.

The judgment should, therefore, be affirmed, with costs.

All concur, except Buger, Oh. J., dissenting, and Batallo, J., not voting.

J udgment affirmed.


author: Danforth, J.

text:
    Charles M. Evarts, Appellant, v. Charles Kiehl, Respondent.
    An action for damages at the suit of an individual is not maintainable against a justice of the peace, because of his failure to render judgment in an action tried before him within four days after its final submission.
    As to whether, where it appears that the justice in fact decided the case but omitted to enter it in his docket within the four days, he would be liable, qumre.

    (Argued March 12, 1886 ;
    decided April 27, 1886.)
    Appeal from judgment of the General Term' of the City-Court of Brooklyn in favor of defendant, entered upon an order made at the March term, 1884, which directed a judgment on a verdict taken subject to the opinion of the court at General Term.
    The nature of the action and the material facts are stated in the opinion.

      Ira Leo Bamberger for appellant.
    Section 3015 of the Code makes it the imperative duty of the justice to render a judgment and enter the same in his docket within four days after the submission of the case. His failure tó do so without a legal excuse is negligence, for the consequences "of which he would be liable. (Keating v. Sewall, 5 Daly, 280 ; Bissell v. Bissell, 11 Barb. 96; Ready Roofing Co. v. Chamberlain, 1 Abb. U. C. 192; Dalton v. Loughlin, 4 id. 187; 1 Daly, 485; Amy v. Barkholder, 78 U. S. 102; Christopher v. Van Liew, 57 Barb. 17; Hall v. Tuttle, 6 Hill, 41; Hess v. Beekman, 11 Johns. 457; Fish v. Emerson, 44 N. Y. 378; People v. Stone, 9 Wend. 192; Horn v. Barney, 19 Johns. 247; People v. Onondaga, 2 Wend. 637; Swan’s Treat, on Justices of the Peace, 1 Ohio, 9 ; 20 id. 327; 15 How. [U. S.] 179; 12 Penn. 227; 29 Vt. 305; Allen v. Godfrey, 44 N. Y. 435; Watson v. Davis, 19 Wend. 371; Sibley v. Howard, 3 Denio, 72, 73; Wakrod v. Shuler, 2 Comst. 134; Stephens v. Santee, 49 N. Y. 39 ; Tompkins v. Sands, 8 Wend. 464; People, ex rel.

      Dexter, v. Linde, 8 Cow. 133; Willy v. Mulledy, 78 N. Y. 310, 314; McAlpin v. Powell, 70 id. 127; Moffatt v. Herman, Daily Reg., March 16, 1886 ; Seifert v. City of Brooklyn, 33 Alb. L. J. 227.)
    t/bs. /S’. Bidgway for respondent.
    The defendant was a judicial officer and acted in a judicial capacity in the matter referred to in the complaint, and failure on his part to act — same not being mala fide — constitutes no cause of action, and he is not liable in a personal action. (Lange v. Benedict, 73 N. Y. 12; Barhyte v. Shepherd, 35 id. 238.) If the plaintiff or his principal did suffer loss or damage, by reason of the alleged neglect of said justice to render judgment, the defendant could in no event be held liable in any greater sum than the actual amount the plaintiff therein had necessarily lost or paid and would have been entitled to recover. (Addison on Torts, 639; Clare v. Manard, 7 C. & P. 743.)
   Danforth, J.

It is a general rule that a person is not liable to an action at the suit of an individual, for what he does or fails to do as judge ( Yates v. Lansing, 5 Johns. 282, 291; 9 id. 395; Wickware v. Bryan, 11 Wend. 545), but where he omits a ministerial duty, or errs in its performance, it may be otherwise. Here the complaint is that the defendant, as justice, took jurisdiction of the cause of Stadtmuller v. Bartsch, and after issue joined, heard the evidence until the case was finally submitted for determination; that it then became his duty “to render judgment and enter it in his docket-book within four days thereafter.” It should be observed that of these two acts, one, to render judgment, is judicial, and the other, to enter it, is ministerial. The plaintiff alleges a default in regard to the latter only, and his counsel says: The respondent did not offer any evidence that he had not decided the case.” It appears, however, by the answer • and the case prepared for the appeal, under section 1339 of the' Oode "of Civil Procedure, that neither act was performed. Ho judgment or decision was made, consequently there was none to enter, and the ministerial duty never attached. Ho case has been cited, which in any degree warrants this action, and the facts suggest nothing in its favor. The appellant was not a litigant before the magistrate. He was' merely surety for the plaintiff, but now seeks a recovery for his own benefit, on an alleged wrong done to his principal, although for aught that appears, if judgment had been given, it 'would have gone against him. Moreover, the defendant was prevented by sickness from attending to his official duties, and if this suit succeeds, must answer for his bodily affliction- by the -diminution of his estate. The doctrine to which I first adverted makes this injustice impossible, and requires the affirmance of the judgment against which the appeal was taken.

All concur.

Judgment affirmed


author: Finch, J.

text:
    Rebecca Race v. Arthur Gilbert, Respondent, S. N. Dada, Referee, etc., Appellant.
    Under the provision of the Code of Civil Procedure (§ 3297), prescribing what fees are to be allowed a referee “ appointed to sell real estate pursuant to a judgment,” in all cases where the referee is not.required to pay the proceeds of sale into court for it to distribute in accordance with the judgment, but that duty is imposed upon the referee, he is entitled to the additional compensation allowed by said provision.
    The fee of the referee.for drawing and executing a conveyance to the purchaser is properly chargeable to the grantee. (Code of Civil Procedure, § 3307, subd. 9.)
    (Argued March 12, 1886;
    decided April 27, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 5, 1884, which affirmed an order of Special Term fixing the fees of the appellant above named, a referee appointed herein to sell in pursuance of the judgment the real estate described therein.
    This was an action for partition, the judgment directed the sale of the real estate by the appellant as a referee, and a distribution by him of the proceeds as prescribed by the judgment.

      The referee claimed the additional compensation allowed by section 3297 of the Code of Civil Procedure, where a referee is required “ to distribute or apply or ascertain and report upon the distribution or application of any of the proceeds of sale.” He also charged $2 for “ drafting deed.” These two items were disallowed.

      8. W. Dada, appellant, in person.
    The referee was entitled to the fees charged for drafting the deed and commissions on one-half the amount distributed. (Code of Civ. Pro., §§ 3297, 3307, 1580.)

      Geo. B. Warner for respondents.
    The statute of distributions of this State has reference to a distribution of the estate of deceased persons among the heirs, according to their degree of consanguinity. (2 Kent’s Com. 420 ; R. S. [Banks’ 7th ed.] 2303.) The referee did not distribute the proceeds of the sale within the meaning of section 3297 of the Code, to entitle him to commissions; he must have performed some duty subsequent to the sale,' aside from the mere payment of the money to the parties entitled thereto. (Schermerhorn v. Prouty, 80 N. Y. 317; Maher v. O'Connor, 1 Code R. 158 ; Lockwood v. Fox, id. 407.)
   Finch, J.

This appeal turns upon the construction of section 3297 of the Code of Civil Procedure which has been phrased so differently from the enactments upon which it was founded as to make its real meaning doubtful and debatable. It gives to a referee, appointed by the court to sell real estate, in addition to the fees allowed a sheriff for the same service, a commission where he “ is required to take security upon a sale or to distribute or apply, or ascertain and report upon the distribution or application of any of the proceeds of sale.” Where a sheriff is appointed to make such a sale he is entitled to receive, in most of the counties of the State, three per cent upon the first $250 and two per cent upon the balance of the pro. ceeds besides a fee for advertising and making the conveyance and his printing disbursements. (§ 3307.) But if a referee is appointed to do the same service he is allowed the full compensation of the sheriff and a liberal commission beside. Why this should be so is not very apparent, and the'seeming injustice of the rule has led the courts below to a construction that paying over the proceeds to the parties entitled, or applying them upon outstanding incumbrances in pursuance of a decree which makes that duty purely ministerial, and therefore, as capable of performance by a sheriff as a referee does not entitle the latter to the additional compensation. But it must be conceded that in the ordinary use of language a payment of the proceeds to the parties entitled, in accordance with their respective rights, is a ££ distribution ” of such proceeds; and a payment upon incumbrances “ applies ” the sum paid thereon so that the referee in the present case stands within the letter of the provision. There is no difficulty in construing the section according to its terms nor any need of blothing them with an unexpressed meaning. The statute gives to a referee additional compensation when he is required to do certain things, one of which is to distribute or apply the proceeds in accordance with the decree. The court may, in a given case, require the referee to make the sale and pay the proceeds into court-In some instances that is the proper order to make (§§ 1563; 1568, 1570), and in such case the court distributes or applies the fund for itself. In that event the referee earns no commissions. But where the court does not make its ‘own distribution of the proceeds and imposes that duty on the referee, leaving him to bear the responsibility of a correct and proper distribution to the parties entitled, an added commission is given. Hor is this quite so unjust as it seems. Ordinarily the distribution is a very simple matter. The decree serves as an absolute guide, and may be obeyed by a sheriff without professional skill. In such a case the obvious duty of the court is to appoint the sheriff to make the sale, and not add to the expenses of the parties by insisting upon the needless luxury of a referee ; and where such is the character of the distribution we must assume that the sheriff will be appointed. But all'distributions guided by the decree are not equally simple or free from difficulties. Some of them are quite complicated, involving unusual calculations and an ability to accurately understand the details of the judgment rendered. In such a case it may be wise and prudent not to commit the duty to a sheriff, but impose it upon some referee possessing the requisite skill and ability, and when that is done it is not unreasonable to allow for the service a larger sum than would be given to the sheriff. The construction of the courts below labors under the serious difficulty that no case can easily be imagined in which the added compensation would be earned upon a distribution. The court must solve all questions and determine fully the rights of the parties, and no room is ordinarily left for any action except implicit obedience to the decree rendered. It is quite true that the provision of the Code is capable of great abuse, and it is possible that referees are appointed to make sales when the more economical process of'appointing the sheriff should be the one adopted; but if any such habit prevails it may be easily corrected, and no careless exercise of the discretion conferred is to be assumed. In this case the referee was entitled to the commissions which the courts have withheld. They decided correctly that the fee for drawing the deed was chargeable to the grantee.

So much of the order of the General Term as denies the right to commissions should be reversed, without costs to either party as against the other.

All concur, except Roger, Oh. J., and Miller, J., not voting.

Ordered accordingly.


author: Andrews, J.

text:
    In the Matter of the Petition of the Manhattan Railroad Company to vacate an Assessment.
    Where the work of local improvement required to be let by contract on competitive bidding has been done by days’ work, the departure from the method pointed out by the statute is a fundamental 'one vitiating the whole assessment for the work, and when the assessment was confirmed prior to June 9, 1880, and so not affected by the act of that year (§ 3, chap. 570, Laws of 1880), the court has no power, on motion to vacate the assessment, to reduce it, leaving it to stand for the petitioner’s proportionate share of the actual value’of the work.
    The departure is not an irregularity condemned by the act of 1874 (§ 2, chap, 313, Laws of 1874),
    (Argued April 13, 1886;
    decided April 27, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made March 1, 1886, which affirmed an order of Special Term vacating an assessment on lands of the petitioner in the city of Hew York, for regulating, grading, etc., One Hundred and Tenth street in that city.
    The facts are sufficiently stated in the opinion.

      D. J. Dean for appellant.
    The assessment should not be vacated entirely, but should be reduced to the extent that the petitioner has been shown to be injured by the illegality. (Laws of 1870, chap. 383, § 27; In re McCormack, 10 Abb. [N. S.] 234; In re O'Hare, 5 Hun, 287; In re Rae, id. 455 ; In re Hebrew Asylum, 10 id. 112; In re Treacey, 59 Barb. 525 ; In re Eager, 46 N. Y. 100; In re St. Joseph's Asylum, 69 id. 353; In re Crum, id. 460; In re Hebrew Ben. Orphan Asylum, 70 id. 476; In re N. Y. P. E. Public School, 75 id. 324; In re Auchmuty, 18 Hun, 326 ; 90 id. 685; In re Walter, 75 N. Y. 354; In re Schell, 76 id. 432; In re Lord, 78 id. 109; In re Merriam, 84 id. 596; In re Leahe and Watts' Orphan Home, 92 id. 116; In re Mayer, 50 id. 503; In re Inst. Sav. Bk., 75 id. 388, 395 ; In re Burmeister, 76 id. 174, 179; Brown v. Mayor, etc., 63 id. 239; People v. Sup'rs of Ulster, 34 id. 268; In re Em. Ind. Sav. Bk., 75 id. 388, 394.)

      James A. Peering for respondent. '
    The failure to submit the work to competition and contract therefor, as required by the city charter of 1873 (Laws of 1873, chap. 335, § 91), is a fundamental and substantial error vitiating the assessment. (In re Robbins, 82 N. Y. 131; In re Lange, 85 id. 307 ; Laws of 1874, chap. 312; In re Merriam, 84 N. Y. 606; 93 id. 361;
      In re Em,. Ind. Savings Bk., 75 id. 388; In re Holly, 25 Hun, 119; In re Stephens, 26 id. 23; McDonald v. Mayor, etc., 68 N. Y. 24 ; Park v. Village of Greenbush, 68 id. 23; In re Trustees of Presb'y, 57 How. ; affirmed, 80 N. Y. 642; In re Mahan, 81 id. 621; In re Man. Sav. Inst., 82 id. 143 ; In re Weil, 83 id. 543; In re Blodgett, 91 id. 117; In re Sec. Ave. M. E. Church, 66 id. 395; In re Cram, 69 id. 461; In re P. E. School, 75 id. 324; In re Peering, 85 id. 1; In re Cheeseborough, 78 id. 232; In re Blodgett, 89 id. 302.) The proper sum not having been definitely ascertained, the power to reduce could not be exercised. (In re Cram, 69 N. Y. 468 ; In re Heb. B. O. Soc., 70 id. 480 ; In re N. Y. P. E. Public School, 75 id. 329.)
   Andrews, J.

The questions in this case are completely covered by former decisions of this court. The assessment in question was for the expense incurred in regulating, etc., apart of One Hundred and Tenth street in the city of Hew York, under the act, chapter 528, of the Laws of 1873. The work was not let by contract, as required by the city charter (Laws of 1873, chap. 335, § 91), but was done by days’ work at an aggregate expense of $437,701.69. The failure to comply with the charter in the manner of doing the work, rendered the assessment void. (In re Robbins, 82 N. Y. 131; In re Lange, 85 id. 307.) These decisions are directly in point, having been made in cases involving assessments, for the expenses of work done on other sections of the same general improvement, under precisely similar circumstances. The invalidity of the assessment is conceded, but it having been shown on the hearing, by an engineer who had been employed on the work, that in his opinion, the work, if it had been let by contract, would have cost at least $169,000, it is claimed that the petitioner’s assessment should not be wholly vacated, but should be reduced, leaving it to stand for his proportionate part of the actual value of the work, as estimated by the engineer. The act of 1870 (Chap. 383, § 27) authorizes the reduction of an assessment, when it shall appear that the expense of a local improvement has been unlawfully increased by an alleged irregularity. The act of 1874 (Chap. 313, § 2) declares that assessments shall not be set aside or vacated for certain specified omissions, irregularities, or technicalities, except where fraud is shown. The power of the court to reduce assessments has been asserted in cases where illegal items have been included in the assessment, and were capable of elimination, leaving the amount to stand for the sum for which an assessment could legally be made. This power has been exercised in some cases not precisely within the act of 1870, in the exercise of the general power of the court outside of the statute to correct errors. (In re St. Joseph's Asylum, 69 N. Y. 353; In re Schell, 76 id. 432.) But in no case has such a reduction been permitted where the whole expenditure for which the assessment was laid, was unauthorized by law, or where although there was power to make the improvement, it was prosecuted in entire disregard of the statutory scheme for making local improvements, and of restrictions designed for the protection of tax payers. On the contrary, radical departures from the methods pointed out by the statute, as where work required to be let by contract on competitive bidding, has been done by days’ work, have been regarded as fundamental and as vitiating the whole assessment. Such a departure is not an irregularity condoned by the act of 1874. It would be unprofitable, in support of our conclusion, to go over ground which has been so frequently traversed in the decisions of the court. It will be sufficient to refer to some of the cases. (In re Industrial Savings Bank, 75 N. Y. 388; In re Merriam, 84 id. 596, 609; In re Weil, 83 id. 543; In re Lange, supra.) The prudential value of the charter provision requiring work to be let by contract, is illustrated in this case, since the claim that the assessment should be reduced and not vacated in toto, proceeds upon the concession that the work for which the assessment was laid, cost the city nearly three times as much as it would have done if it had been let by contract.

The act of 1880 (Chap. 570, § 2) applies to assessments confirmed after June 9, 1880, and has no application to the assessment in question, which was confirmed before that date.

The order should be affirmed.

All concur.

Order affirmed.


author: Per Curiam.

text:
    The Corn Exchange Bank of Chicago, Appellant, v. Alphonso W. Blye, as Receiver, etc., Respondent.
    The condition of an undertaking given by a defendant in an action to recover possession of personal property, to reclaim the property replevied, does not become fixed and determined until the final determination of the action. He only becomes bound to surrender the chattels when the plaintiff has a right to enforce a judgment in his favor. That right does not exist, where there has been an appeal from the judgment, until the appeal is disposed of.
    The requisition in such an action was not executed until a few days prior to the trial. The defendant served the papers requisite to reclaim the property before the trial, but the day specified for justification of the sureties to his undertaking was not until after trial, which resulted in favor of plaintiff; after entry of judgment plaintiff procured an order to show cause, on which to move to set aside defendant’s undertaking, and also a stay of defendant’s proceedings. Before the hearing of the motion defendant appealed from the j udgment, and proceedings to enforce the same were stayed. Meld; that the motion was properly denied; that, as plaintiff had not secured the right to enforce his judgment, he could not cut off defendant’s right to reclamation.
    (Argued April 13,1886;
    decided April 27, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made March 8, 1886, which affirmed an order of Special Term denying a motion on the part of plaintiff to set aside an undertaking given hy the defendant, for the purpose of reclaiming property replevied herein.
    The material facts are stated in the opinion.

      L. A. Gould for appellant.
    A proceeding to replevy a chattel, or to reclaim a chattel replevied, must be invoked and perfected, if at all, before judgment. (Code of Civ. Pro., §§ 1694, 1703, 1704, 1717.) The right of the defendant to the delivery of the property to him was dependent on the justification (of his sureties) upon notice. (Grant v. Booth, 21 How. Pr. 355 ; Graham v. Wells, 18 id. 376.) The appeal from the judgment taken by defendant, and the stay of execution thereon, is no legal answer to the motion. (Sixth

      Ave. R. R. Co. v. Gilbert El. Ry. Co., 71 N. Y. 430.) The undertaking is fatally defective. (Nichols v. Mac Lean, 1 How. Pr. [N. S.] 370.) The order is appealable to the Court of Appeals. ( Wright v. Rowland, 4 Keyes, 166 ; Plimpton v. Bigelow, 93 N. Y. 592; Foote v. Lathrop, 41 id. 361; Tracy v. First Nat. Bk., 37 id. 523 ; Leland v. Hathorne, 9 Abb. [N. S.] 97; Kain v. Delano, 11 id. 29.)

      William Yanamee for respondent.
    The order is not appealable. (Howell v. Mills, 53 N. Y. 322; Lawrence v. Farley, 73 id. 187.) There could be no final determination until the appeal from the judgment had been disposed of. (Ball v. Gardner, 21 Wend. 270 ; Bennett v. Brown, 20 N. Y. 99.) The undertaking is to be construed as taking effect from the time of its delivery. (Diossy v. Morgan, 74 N. Y. 11; Decker v. Judson, 16 id. 439; Lee v. Clark, 1 Hill, 56.) It was no ground for setting the undertaking aside that it was not in absolute conformity with the provisions of the Code. (Code, § 730.)
   Per Curiam.

The plaintiff brought an action to recover of the defendant certain bonds, and caused to be executed and delivered to the sheriff a proper undertaking and requisition to take possession of the same pending the action. This was executed October* 31, 1885. On November 5, 1885, the cause came on for trial, and a verdict was directed in favor of plaintiff, and a. judgment entered thereon, which judgment, together with a notice of entry, was duly served upon defendant, November 7, 1885. The defendant, within the time prescribed, served an undertaking to reclaim the bonds, with notice of justification of the sureties, on November 9, 1885, two days after entry of judgment. Plaintiff procured an order to show cause on which to move to set aside the defendant’s undertaking, and obtained a stay of defendant’s proceedings. Pending the motion to set aside the undertaking and before the, hearing thereon, an appeal from the judgment was taken by the defendant, and proceedings to enforce the judgment were stayed. The motion when heard by the Special Term was denied, and according to the opinion of the General Term it was disposed of upon the ground that the plaintiff had not secured the right to enforce the judgment obtained, and could not, therefore, cut off the defendant’s rights initiated by the proceedings under section 1704 of the Code of Civil Procedure.

The appellant claims that there is no right in the defendant to reclaim chattels after a trial of the action upon the merits, and the entry of a judgment against defendant, which adjudges the delivery and possession of the chattels to the plaintiff, and it relies upon certain provisions of the Code relating to the subject, viz.: §§ 1694, 1703, 1704, 1717.

The answer to this position is that the condition of the undertaking did not become fixed and determined until the final determination of the action, and this could not be until the appeal had been disposed of. The defendant only became bound to deliver'the chattels recovered when the plaintiff had a right to enforce a judgment in.its favor. This right did not exist so long as the appeal was pending. Upon the judgment being finally affirmed upon appeal, the contingency would happen upon which the liability of the sureties would be fixed and determined, and a delivery of the chattels would be finally adjudged. In the meantime, the proceedings had for justification of the sureties before judgment was entered could be completed afterward, and before judgment was obtained upon which the final liability of the sureties depended. The failure of the sureties to justify, and of the allowance of the undertaking, was caused by the stay of proceedings granted on the order to show cause why the undertaking should not be set aside, and the defendant was thus prevented from perfecting the undertaking. The stay mentioned became vacated when the motion was denied. If the defendant’s undertaking, the perfecting of which had been stayed, was defective and insufficient, ample provision is made for amending it, which amendments may be allowed by the court in furtherance of justice. It is not now necessary to determine how this should be done, as it is for the Supreme Court to regulate its own practice, etc. There is no sufficient reason for setting the undertaking aside upon this motion because it is not in conformity with the' provisions of the Code. Such objection would properly arise upon the application for the allowance of the undertaking, and if at that time the objections were deemed valid by the judge, it could be amended.

The opinion of the General Term mainly covers all the questions raised.

The order should be affirmed.

All concur, except Andrews, J., not voting.

Order affirmed.


author: Roger, Ch. J.

text:
    John Reining et al., Appellants, v. The City of Buffalo, Impleaded, etc., Respondent.
    The provision of the charter of the city of Buffalo (§ 7-, tit. 3, chap. 519, Laws of 1870), declaring that “ no action or proceeding to recover or enforce any claim against the city" shall be brought until the expiration of forty days after the claim shall have been presented to the common council,” attaches as a condition precedent to the commencement of any action against the city.
    It is, therefore, necessary to allege in the complaint, in an action against the city for a tort, the presentation of the claim, and the expiration of forty days thereafter before the commencement of the action.
    The legislature has power to attach such a condition to the maintenance of a common-law action as well as to one created by statute.

      Nagel v. City of Buffalo {34 Hun, 1), overruled.
    (Argued April 13, 1886;
    decided April 27, 1886.)
    Appeal from judgment of the General Term of the City Court of Buffalo, in favor of defendants, entered upon an order made January 5,1884, which sustained a demurrer to plaintiff’s complaint and dismissed the complaint.
    This action was brought to recover damages alleged to have been sustained by plaintiffs by the unlawful erection of an embankment in a street in the city of Buffalo.
    The defendant, the said city, demurred to the complaint, that as to it, the complaint did not state facts sufficient to constitute a cause of action.

      David, F. Day for appellants.
    The plaintiffs’ cause of action is given by the principles of the common law, and was perfect and complete when the injury to their property was done. (Laws of 1870, chap. 519, tit. 3, § 7.; Nagel v. City of Buffalo, 34 Hun, 1; Taylor v. Mayor, etc., of New York, 82 N. Y. 10 ; Cowden v. Pease, 10 Wend. 334; Cowden v. Stanton, 12 id. 120; Comm. v. Hart, 11 Cush. 130; Comm. v. Jennings, 121 Mass. 47; Hart v. Kleis, 8 Johns. 41; Teel v. Fonda, 4 id. 304; Bennett v. Hurd, 3 id. 438.) The improper joinder of parties as defendants is not a ground of demurrer. (Code, § 488; Brownson v. Gifford, 8 How. Pr. 389-392;)

      William F.' Worthington for respondent.
    This action cannot be maintained without a presentation of the claim to the city in the manner specifically" pointed out by the charter, and performance of this condition precedent must be alleged in the complaint, and this whether the action is founded on contract or tort, and if the complaint contains no such averment, it is bad on demurrer. (McCann v. Sierra Co., 7 Cal. 121; Alden v. Alameda Co., 43 id. 270 ; Stackpole v. School District, 9 Ore. 508 ; State v. Lancaster Co. Bk., 8 Neb. 218; State v. Stout, 7 id. 105; Jones v. Minneapolis, 31 Minn. 230; Bevlier v. Pine Valley, 53 Wis. 527; Susenguth v. Town of Rantoul, 48 id. 334; Plum v. Fond du Lac, 51 id. 393; McFarlane v. Milwaukee, id. 691 ; State v. Supervisors, 34 id. 170; Maddox v. Randolph Co., 65 Ga. 216; Marshall Co. v. Jackson Co., 36 Ala. 613.) Statutes of limitations are not founded on any presumption of payment. They simply give the defendant the right to be shielded by them if he so elects, arid thus deprive the plaintiff of a cause of action. (Green v. Rivett, 7 Mod. 12; Battle v. Faulkner, 3 Barn. & Ald. 292; 7 Wait’s Actions and Defenses, 223; 1 Wait’s Pr. 48.) The statute of limitations can only be taken advantage of by answer. (Code of Civ. Pro., § 413; Code of Pro., § 74.) Whenever a demand is necessary it must be alleged in the complaint. (2 Wait’s Pr. 390; 1 Saunders or PI. and Ev. 319 ; Fisher v. Mayor, etc., of New York, 67 N. Y. 73.) Wherever a demand is necessary before a right to sue accrues, the statute of limitations commences to run from the time when the demand might first have been made. (Code of Civ. Pro., § 410 ; Minick v. Troy, 83 N. Y. 516 ; Porter v. Kingsbury, 71 id. 588.; Ellison v. Halleck, 6 Cal. 386; 46 Conn. 56; 128 Mass. 318, 387, 521; 129 id. 525; 130 id. 115, 161, 398, 402; 46 Vt. 771; 53 id. 370, 510, 600; 54 id. 172, 242, 510; 73 Me. 485; 68 id. 511; 50 Iowa, 439.) Every fact which the plaintiff must prove to enable him . to recover, must be distinctly averred. (Allen v. Patterson, 7 N. Y. 478 ; Bailey v. Ryder, 10 id. 370 ; Knox v. Mayor, etc., 55 Barb. 404.)
   Roger, Ch. J.

The sole question presented by this appeal is, whether the complaint, in an action against the city of ' Buffalo, should contain an allegation of the previous presentation of the claim declared on to its common council, and that forty days had expired since such presentation. The clause of the city charter requiring such a proceeding reads as follows : “bic action to recover or enforce any claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council in the manner and form provided.” (§ 7, tit. 3, chap. 519, Laws of 1870.)

The inquiry is whether this provision was intended to operate as a condition precedent to the commencement of an action, or simply to furnish a defense to the city in case of an omission to make such demand. .Ye think the plain language of the statute excludes any doubt on the subject.

It absolutely forbids the prosecution of any .action until the proper demand has been made. It attaches to all actions whatsoever, and by force of the statute becomes an essential part of the cause of action, to be alleged and proved as any other material fact. It does not purport to give the city a defense dependent upon an election to use it, but expressly forbids the institution of any suit until the preliminary requirements have been complied with. The plain intent of the requirement was to protect the city from the costs, trouble and annoyance of legal proceedings, unless, after a full and fair opportunity to investigate and pay the claim, if deemed best, they declined to do so.

It is not in such a ease necessary that the thing required should constitute one of the elements of a common-law action, for if the legislature have made even a step in their remedy a condition of its prosecution, it is essential not only that it should be taken, but that it should be affirmatively alleged and proved by the plaintiff. It is competent foi them to attach a condition to the maintenance of a common-law action as well as one created by statute, and, when they have done so, its averment and proof cannot safely be omitted. The court, in Nagel v. City of Buffalo (34 Hun, 1), in considering the statute in question, seemed to think its requirement was in the nature of a condition subsequent or proviso, having no necessary connection with the proper s tatement of a cause of action, but we think they erred in their conception of. the nature of the provision. Neither its language or object, is analogous to those provisions authorizing the defense of the statute of limitations, or other special and particular defenses constituting conditions subsequent, which may or may not occur in particular cases, and must, therefore, be averred to authorize the court to take cognizance of them. Here the requirement exists, independent of proof, in every case and is made to precede the institution of any suit whatever. Its performance cannot for any purpose be presumed, but must, tobe availed of be alleged and proved. The language is “ that no action” “shall be brought ” until, etc., and constitutes an express prohibition against the action, until performance of the condition. A noncompliance with this requirement can be raised by the defendant, at any stage of the action, when it is called upon to act in the case.

The general rules of pleading applying to such cases are elementary and hardly need citations to illustrate them.

It was said by Judge Dentó in Howland v. Edmonds (24 N. Y. 307): “ If the defendant’s liability depends upon the performance of a condition precedent, it is very plain that no action will lie until it be performed, and a request or demand of the thing claimed may and frequently does constitute such a condition to the obligation of the defendant. When that is the case, such demand before suit brought must be averred and proved to enable the plaintiff to maintain the action.” The rule is also illustrated by the decision in Graham, v. Scripture (26 How. 501), where in an action upon a judgment, which was prohibited by statute, except upon leave of the court first had, it was held that the allegation of such leave must be averred and proved by the plaintiff. It was held in Taylor v. Mayor, etc. (83 N. Y. 625), that a similar provision in the charter of Hew York constituted a condition to the maintenance of an action against the city, although in that case it was also held that it did not in terms apply to the use, of a claim by way of set-off, or recoupment in an action brought by the gity against the claimant. The case of Porter v. Kingsbury is analogous to the case in hand. There suit was brought upon an undertaking on appeal which the statute directs shall not be maintained ” until ten days after service of notice of the entry of judgment of affirmance upon the appellant. It was held that performance of the requirement was a condition precedent and must be alleged in the complaint. (§ 1309, Code of Civ. Pro.; Porter v. Kingsbury, 5 Hun, 597; affirmed, 71 N. Y. 588.) There the act required to be performed constituted no part of the cause of action, but was provided, as in this case, to shield the parties liable, from cost and trouble in case of their willingness to pay the claim without suit, after notice given. It is immaterial whether a condition be imposed in the statute giving a right of action, or be provided by contract, or exists by force of some principle of common or statute law, the complaint must, by the settled rules of pleading, state every fact essential to the cause of action as well as those necessary to give the court jurisdiction to entertain the particular proceeding.

The dicta in Minick v. Troy (83 N. Y. 514, 516) with reference to a similar requirement/that it was necessary for the plaintiff to “ show in the first instance that the claim for which the action was brought was presented to the comptroller,” accords Avith these views, and is further supported by the case of Fisher v. Mayor, etc. (67 N. Y. 73), where the liability- arose under the statute authorizing the city to acquire lands by right of eminent domain. The act there provided for compensation by the city, and authorized suit to be brought therefor upon an award, and " after application first made to the mayor,” etc., “ for payment.” It was held that this requirement constituted a condition precedent to the maintenance of an action. The liability to pay in that case existed by force of the Constitution, and the statute only regulated the method by Avhich the amount was to be determined, and the mode of enforcing payment thereof. The case does not in principle seem to.be distinguishable from that under discussion.

We are also referred to a number of decisions in the courts of our sistpr States upon statutes quite similar to that of the Buffalo charter, in Avhich the want of an allegation of presentation and demand has been held demurrable. (Jones v. Minneapolis, 31 Minn. 230; Benware v. Pine Valley, 53 Wis. 527 ; Maddox v. Randolph Co., 65 Ga. 216; Marshall Co. v. Jackson Co., 36 Ala. 613.) We agree with the conclusions reached in those cases.

The judgment appealed from should be affirmed.

All concur.

Judgment affirmed.