text:
    EDWARD ROBERTS, Appellant v. AUGUST BAUMGARTEN, et al., Respondents.

      Ejectment—Eight to a new trial after one trial of an issue of fact and a judgment,'as a matter of right, under the Code of Civil Procedure.— Exceptions under the rulings in this case.

    This action is one of ejectment, tried on the 2nd day of June, 1884, at trial term, and judgment entered for plaintiff. Defendants appealed to the general term, which reversed the. judgment and ordered a new trial. Plaintiff appealed to the Court of Appeals, giving the usual stipulation required by the Code of Civil Procedure, consenting to the entry of judgment absolute in the event of an affirmance by the Court of Appeals of the order granting a new trial. The Court of Appeals did affirm the order of the general term of this court, and ordered judgment absolute against plaintiff on his stipulation, which judgment was entered in this court upon the remittitur in November, 1888. Afterwards, in January, 1890, an order was entered at special term vacating this judgment of 18S8, and granting a new trial as a matter of right under the statute and the Code of Civil Procedure upon tlie affidavit of plaintiff that costs and damages had been paid to defendants. Shortly afterwards the defendants moved at special term to set aside that order of January, 1890, on the ground that the judgment entered in November, 1888, upon the remittitur from the Court of Appeals, is not such a judgment as the statute and Code of Civil Procedure contemplated when the unsuccessful party is given one new trial as a matter of right in ejectment. The special term vacated and set aside the order of January, 1890.
    Held, upon the well considered opinion of the learned judge, who made the order appealed from, and the rulings of the Court of Appeals in cases cited in said opinion, that the judgment entered upon the remittitur from the Court of Appeals, in November, 1888, is not within the scope of the statutory provision that enables the unsuccessful party in ah action of ejectment to claim one new trial as a matter of right.
    Before Freedman, Truax and Ingraham, JJ.

      Decided December 1, 1890.
    Appeal' from order vacating an order granting a a new trial as a matter of right, on payment of damages and costs in an action of ejectment.
    The following opinion was delivered at special term.
    Dugro, J.—“ It seems that the Code provisions requiring a stipulation for judgment absolute against an appellant, if an order granting a new trial is affirmed (subd. 1, Sec. 191, Code Civil Proc.; subd. 2, sec. 11, Code Proc.), remained substantially unchanged, so far as they affect the question under consideration, during the existence of at least four different provisions as to new trials in ejectment actions, so that in endeavoring to interpret subdivision 1, section 191, and sections 1524-5, Code Civil Procedure, with respect to each other, the question is chiefly as to the intention of the lawmakers in originally requiring the assent, and as to their intention in enacting sections. 1524-5 of the present Code.
    “ In 1857, section 11 of the Code of Procedure was amended so as to require a stipulation for judgment absolute in cases where an appeal was taken to the Court of Appeals from an order granting a new trial. At that time and up to the passage of the Act of 1861 (post) the Revised Statutes provided that in ejectment actions a second trial, as a matter of right, could be had after a judgment where the judgment had been rendered upon a verdict. ' This right was allowed, in order to afford a way for relief against the accidents and misfortunes to which jury trials are peculiarly liable. Bay v. Gfage, 36 Barb. 448. In cases where the judgment had been entered after the stipulation, the assent being optional, none of the risks incident to jury trials were incurred. So the reason which induced the allowance of a new trial in cases where a judgment had been rendered on a verdict would not apply to cases where the judgment had been rendered upon the stipulation.
    “ It therefore appears that the stipulation required was one for judgment absolute as against the right of an appellant, inclusive of his right to a new trial after judgment, and the giving of the stipulation operated accordingly. Chapter 221, Laws of 1861. amended the Revised Statutes so that a new trial as a matter of right could be had after any judgmen in an action of ejectment, but this sweeping privilege was speedily cut down by an amendment (chap.. 485, Laws 1862), which provided, in .effect, that a new trial could be had as of right in an action of ejectment after ‘ judgment rendered upon a verdict of a jury or a report of a referee upon the facts, or upon a decision of a single judge upon the facts.’
    “ By the Code of Civil Procedure the law was again changed, so that it is now provided that a new trial may be had as a matter of right in the actions referred to 6 after a final judgment rendered upon the trial of an issue of fact ’ (sections 1524-5). '
    “ From a consideration of these changes in the law I am unable to discern any reason which would afford a fair basis for opinion that the effect of making the stipulation as to a judgment absolute is now I otherwise than it was in 1857, when the assent was first required. In addition, it may be said that in the present action, there is no judgment which was rendered upon a trial; the only one now in existence was rendered upon a stipulation, and it stands in effect as a judgment entered by consent.
    “ For these reasons it seems that the judgment rendered by the Court of Appeals in this action was not such a judgment as is referred to in section 1525, Code Civil Procedure.
    “ The necessary conclusion is that in an action of ejectment, after judgment absolute rendered by'the Court of Appeals upon the right of an appellant who has assented, as required by section 191 of the Code, no right to a new trial exists by virtue of section 1525.
    “ The motion to vacate the order of January 17th is granted.”

      Daniel G. Rollins, attorney, and Robert Hunter McGrath, Jr., of counsel, for appellant, on the questions considered, argued :—
    I. The only limitation upon the rights of suitors to successive trials in ejectment in this state is found in the provisions of the Code of Civil Procedure relating to actions for the recovery of real property ; and the unsuccessful party in such an action is, after the trial of an issue of fact, entitled as a matter of course to have the judgment vacated and one new trial awarded. This is a proposition easy of demonstration. Sections 1524 and 1525 of the Code of Civil Procedure are in the following words : Section 1524.—Except in a case where it is otherwise expressly prescribed in this act, a final judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through or under him, by title accruing, either after the judgment roll is filed, or after a notice of the pendency of the action is filled in the proper county clerk’s office, as prescribed in article ninth of this title. Section 1525.—The court, at any time within three years after such judgment is rendered, and the judgment roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs and all damages, other than for rents and profits, or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court, upon a like application, made within two years after the second final judgment is rendered, and the judgment roll is filed, may make an order vacating the second judgment, and granting a new trial, upon the like terms, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established. Not more than two new trials shall be granted under this section. ■ Such provisions of these sections as grant a second trial in ejectment, as a matter of course, have been the law of this state for more than fifty years ; and they must be taken to embody the legislative view of the proper restrictions which should be imposed, and have by them been imposed, upon the rule of the common law in regard to new trials in ejectment. At common law a suit in ejectment never aimed at settling or professed to settle the right of property ; but the judgment determined the right to the possession of the property at the time of the institution of the suit. This followed from the very fiction upon which the litigation was founded. The plaintiff averred that he had received a demise from some fictitious individual, and that the defendant had deprived him of the possession of the property. It speedily became one of the rules of pleading that the defendant must admit the demise to the plaintiff and his prior possession. The question then to be decided by the court was whether or not the defendant or plaintiff could establish a right to the possession of the property. Obviously such an issue might be tried as often as an unsuccessful party in á particular suit chose, and was able to pay costs, since it was possible for him to receive a demise from an indefinite number of fictitious persons, upon each one of these fictitious demises founding a new suit to determine the possession of the property. These successive suits grew into such an abuse that persons harassed by the same litigant were accustomed to obtain relief in chancery by decrees enjoining the persistent suitor from further proceedings of the same character. Taylor e. d. Atkyns v. Horde, 1 Burrows, 60, 114; Jackson v. Dieffendorf, 3 Johns. 269 ; Bates v. Stearns, 23 Wend. 483. This being the common law was also the law of this state. It has been expressly decided that before the Revised Statutes a judgment in ejectment was no bar to another action between the same parties to recover the possession of the same property ; but only by the statute did such a judgment become conclusive as to the title established in the action. The Equator Company v. Hall, 106 U. S. 87 ; Jackson v. Dieffendorf (supra); Keeler v. Dennis, 39 Hun, 31. The language of the statute is imperative, and a party, on application to the court, showing payment of costs and damages recovered, must have a new trial; as to one new trial the courts have no discretion. Howell v. Eldridge, 21 Wend. 631 ; Rogers v. Wing, 5 How. 50.
    II. The judgment of November 27, 1888, entered in the Superior Court upon the remittitur from the Court of Appeals, is a judgment rendered upon the trial of an issue of fact. This proposition is the crucial point of the case. The Code of Civil Procedure in express terms provides for the granting of a new trial by the court after the entry of a final judgment rendered upon the trial of an issue of fact, and also contains a separate section regulating the granting of a new trial to the defendant after a final judgment rendered otherwise than upon the trial of an issue of fact. Unless, therefore, this judgment of November, 1888, is one rendered upon the trial of an issue of fact, there can be no new trial, the applicant being the plaintiff to whom § 1526 does not refer. An examination of the condition of the law regulating new trials before the Code of Civil Procedure will make very plain the meaning intended to be expressed by the legislature in that phrase “rendered upon the trial of an issue of fact.” It must be borne in mind, as has been said, that the statutory regulations of the action of ejectment are restrictive of the common law and not expansive ; hence it is by no means true, as was said by Judge Bockes, that the second trial is a statutory boon not to be extended by construction beyond the strict letter of the law. Bay v. Gage, 36 Barb. 447, 448. The Revised Statutes limited the right to a new trial in ejectment to those cases in which a judgment has been rendered against a party upon a verdict. Under their language it was held that no second trial, as of course, could be granted when the judgment had been rendered in a controversy submitted without action by consent of the parties ; such procedure neither constituted an action, nor could advantage be taken of the Revised Statutes, which applied only to a judgment founded on the verdict of a jury. Lang v. Ropke, 1 Duer, 701. Nor, for the latter reason, could a new trial be ordered after a judgment upon a demurrer. Christy v. Bloomindale, 18 How. 12. In a subsequent case, also, the general term of the supreme court held that no new trial as of course could be granted where the judgment had been entered upon the report of a referee after a hearing upon the merits, the statute expressly restricting the right to a judgment rendered upon a verdict. Shortly before this latter decision, but after the commencement of the action in which it was made, the legislature struck out the words “ upon a verdict ” and amended the statute .to read as follows : “ Section 36.—Every judgment in the action of ejectment shall be conclusive as to the title established in such action upon the party against whom the same is rendered, and against all persons claiming from, through or under such a party by title accruing at the commencement of such action subject to the exceptions hereinafter contained.” (Rev. Stat., Chap. 5, Tit. 1. Part 3. Session Laws 1861, C. 221. This exception was that of a judgment rendered by default. Any other judgment, whether rendered upon the trial of an issue of law or of fact might be set aside and a new trial granted if only the party against whom the judgment was entered did not allow it to be entered by default. A year later, however, the legislature again changed the law and thus altered section 36 : “ Every judgment in the action of ejectment rendered upon the verdict of a jury, or a report of a referee upon the facts, or upon the decision of a single judge upon the facts, shall be conclusive as to the title established in such action upon the party against whom the same is rendered and against all parties claiming from, through or under such party by title accruing after the commencement of such action subject to the exception hereinafter contained. (Sessions Laws 1862, Chap. 485.) The exception hereinafter contained was still that of a judgment rendered upon a default, In this condition the law remained until the passage of the Code of Civil Procedure. Nor upon an examination of the Code is it difficult to arrive at an understanding of that expression “ after the trial of an issue of fact,” since the Code itself defies its meaning. “ An issue arises when a fact or conclusion of law is maintained by one party and controverted by another. Issues are of two kinds ; (1) of law ; and (2) of fact,” (Co. Civ. Proc., § 963.) “ An issue of law arises upon a demurrer ” (§ 964.) Now if an issue of law arises only upon a demurrer, it is evident that sections 1524 and 1526 provide for a new trial in ejectment in every possible case. Section 1524 provides for the setting aside of a judgment rendered upon the trial of an issue of fact. Section 1526 abandons the old phrase default, about which there was always some question whether or not it included a submitted controversy, and whether or not it included a judgment rendered upon a demurrer (Co. Civ. Proc., § 1526, Throop’s Notes), and substitutes therefore the general provision, “ otherwise than upon the trial of an issue of fact.” Certainly it is not unreasonable that a party who has suffered a judgment in ejectment to be entered against him by default should be obliged to show cause why he should have a new trial; nor is it unreasonable that when a judgment in ejectment has been rendered upon the trial of an issue of law, the party seeking a new trial should be obliged to offer some reason why the court should exercise its discretionary power. Hence section 1526 declares the judgment binding upon the defendant, only it does not affect thq plaintiff. This judgment of November 27, 1888, was certainly not entered by default, nor was it entered on a demurrer. Plainly it was rendered upon the trial of an issue of fact. The case came on to be tried at the special term and the parties waived a jury ; judgment was subsequently entered in favor of the plaintiff; the defendants appealed from that judgment (there will hardly be a contention that this judgment was not rendered upon the trial of an issue of fact) and obtained an order of the general term reversing and granting a new trial. The plaintiff in his turn appealed to the Court of Appeals from the order of the general term granting a new trial. It must bo recollected that with the entry of that order there ceased to be in existence any judgment. The one judgment entered in the action, that upon the trial of an issue of fact at special term had been reversed and held for naught by the general term. The appellant as a condition to ascertaining from the court of last resort whether or not a new trial had been rightly granted, found himself confronted by a statutory obligation to consent to the entry of judgment absolute against him should the Court of Appeals affirm the order of the general term. This he did; and the Court' of Appeals did affirm the order of general term ; and ordered the lower court to enter judgment absolute upon the stipulation. How can this judgment entered upon the stipulation be other than one rendered upon the trial of anissueof fact? The counsel for the defendants contended in the court below that, having been rendered on a stipulation, its nature was in some mysterious manner changed. There can be no judgment under our practice except as the termination of an action, and, save in the case of a default, as the consequent of a trial either of “ an issue of fact ” or of “ an issue of law.” One of those phrases is used in the very section under consideration relating to ejectment, while the Code of Civil Procedure says that an issue of law arises only upon a demurrer. Manifestly every other judgment must be a judgment after the trial of an issue of fact or upon default. The true doctrine is that the entry of a judgment, ’ by order of an appellate court,' is nothing more or less than the original entry of a proper legal judgment by the court in which the action was tried. After the reversal by the general term of the judgment entered at the trial, the judgment entered upon the remittitur from the Court of Appeals was the true legal judgment rendered after the trial of an issue of fact. In Phyfe v. Masterson 45 Super. Ct. 338 is a contention very much like that of the learned counsel for the defendants, on the argument of this motion at the special term. There had been a trial before a court and jury in ejectment, and a verdict rendered for the plaintiff. The court ordered that the entry of judgment be stayed, and the defendant’s exceptions be heard in the first instance at general term. Afterwards, at general term, the defendant’s exceptions were overruled, and judgment ordered for the plaintiff. When the defendant obtained an order vacating that judgment and granting a second trial under the statute, the plaintiff appealed to the general term, urging strenuously that the judgment was not within the statutory provisions (at that time 2 Rev. Stat. p. 309, § 36), because it was a judgment not' following the verdict of a jury, but entered upon an order of the general term. This is precisely the claim here : that the judgment is not one rendered after the trial of an issue of fact, but one entered on a stipulation by order of the Court of Appeals. This objection the court held to be invalid, saying : “ The court at the trial ordered that the entering of judgment thereon (the verdict) be stayed, and that the defendant’s exceptions be heard in the first instance at the general term. The exceptions were overruled at general term, and the order directed that the plaintiff have judgment on the verdict. When the plaintiff entered this judgment it was therefore upon the verdict of the jury.”

      III. The provision of the Code of Civil Procedure requiring a stipulation for judgment absolute to be given by the party appealing from an order of the general term granting a new trial does not affect the right to a second trial in ejectment. Subdivision 1 of § 191 of the Code of Civil Procedure, fixing certain limitations to the right to appeal to the Court of Appeals given in the section immediately preceding is in the following words : “ An appeal cannot be taken from an order granting a new trial, on a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute shall be rendered against the appellant.” It is insisted by the defendants in this action that as judgment was rendered in their favor upon the stipulation of the plaintiff given upon his appeal to the Court of Appeals from the order granting a new trial, such judgment absolutely and forever determines the matters in litigation in this action ; and that §§ 1524, 1525, regulating new trials in ejectment have no application. This view was adopted by the learned judge at special term. He bases his decision upon the curious reasoning taken from the' erroneous case of Bay v. Gage, 36 Barb. 448, that a new trial in ejectment was one allowed in order to afford relief against the accidents and misfortunes to which jury trials are peculiarly liable, arguing further that where a stipulation for judgment absolute has been given after trial, as there were none of the risks incident to jury trials, it must be assumed that the intention of the law makers was not to extend a right to a new trial to such cases. The object of subdivision 1 of § 191 of the Code of Civil Procedure, is merely to attach a penalty to certain appeals to the Court of Appeals. Appeals under the old practice were confined to final judgments or decrees and the granting of the right to an appeal from an order granting a new trial was an innovation. As a condition to the enjoyment of this innovation the appellant was obliged to give the stipulation in question. Now, the object of this provision is only the prevention of appeals ; and it has been said by the Court of Appeals that it has proved a trap, and that the appellant under such a stipulation runs the risk of any errors that may be found by the appellate court in the whole record, and that affirmance must follow though the appeal from the order were well taken. Mackay v. Lewis, 73 N. Y. 382 ; Krakeler v. Thaule, 73 lb. 608 ; Simar v. Canady, 53 lb. 298. In any action other than that of ejectment, where one trial is finally determinative of all the matters in controversy, such a stipulation as this is, of course, conclusive upon the rights of the appellant. It must be observed that § 191 requires an assent upon the part of the' appellant to the entry of judgment absolute against him, whereas § 1524 only becomes operative after the entry of judgment, which, under its provisions, shall be vacated on payment of costs and damages. There is no incongruity in these sections of the Code of Civil Procedure, and they may be fully effectual side by side, without need of the forced construction claimed by the respondents. A careful reading of §191 shows no other meaning in the phrase “judgment absolute ” than a wish for the absence of confusion. Any other phrase without the word absolute would have left doubt and produced .interpretative litigation. There seems now to be but one case in which the courts have endeavored to construe that part of this section which requires judgment to be entered upon the right, of the appellant. In The People v. Dennison, 8 Abb. N. C. 145, the plaintiff appealed from an order of the general term granting a new trial ; the answer in the action had set up a counter-claim, which had not been adjudicated upon by the judgment in the court below, and although the Court of Appeals entered judgment absolute upon the stipulation of the plaintiff on affirming the order of the general term, granting a new trial, it was held that affirmative judgment for the counterclaim could not be entered on such a stipulation. “ What does the section mean,” said the court. “The court must render judgment absolute upon the right of the appellant. Is there no significance in these words, ‘ the right of the appellant ? ’ The court is not to render an absolute judgment for every claim made by the defendant in his pleading, but upon the right of the appellant which the appeal involves and which the order appealed from denied; Now the right of the appellant involved in the appeal from the order of 1885 granting a new trial, was the right to have or not to have such a new trial ; and if the Court of Appeals should, as they did, enter a judgment against him, the effect of such judgment was final and terminated his right to a new trial by an absolute judgment; but that absolute judgment did not and could not interfere with the positive provisions of § 1525 of the Code of Civil Procedure granting the second trial in the particular action of ejectment.
    IV. The plaintiff applied to this court for an order vacating the judgment and granting a new trial within the three years fixed by the Code of Civil Procedure. The Code of Civil Procedure awards the party' against whom a judgment has been entered a new trial at any time within three years on payment of damages and costs. Here the first judgment entered in December, 18 84, was in favor of the plaintiff. He could not move to have that set. aside. The defendants thereupon appealed and procured an order reversing the judgment. The first and only judgment entered against the plaintiff or in favor of the defendants was that upon the remittitur from the Court of Appeals on the 27th day of November, 1888. The plaintiff applied to this court on the 17th day of January, 1890, not quite two years after the entry of the judgment. The case is readily distinguishable from that of White v. The Chautauqua Bank, 23 N. Y. 347, which was an action of ejectment where judgment was entered in favor of the plaintiffs in 1852. In 1856 and 1857 that judgment was affirmed respectively by the general term and by the Court of Appeals. In 1859, seven years after the entry of judgment, a motion to vacate the judgment and for a new trial was made, but denied upon the ground that the three years contemplated by the statute were three years from the entry of the final judgment and not from the entry of orders affirming such final judgment. In the present case there is no such question.'
    V. If the judgment of November 27th, 1888, is not a judgment rendered upon the trial of an issue of fact, then it is not within the provisions of any statute of the state, and the plaintiff, relegated to his common law rights, is entitled to any number of new trials. The Equator Company v. Hall, 106 U. S. 87.

      Cephas Brainerd, attorney and of counsel, for respondents, on the questions considered, argued:—
    I. The Code of Civil Procedure provides (§1524), that a final judgment rendered upon a trial of an issue of facts in such an action as this is final and conclusive, unless it comes within the exception expressly prescribed in the statute. That exception is made in unmistakable language in the next section (§1525), which is, that at any time within three years after such a judgment [i. e., a judgment on the trial of an issue of fact] is rendered, and the judgment roll filed, a new trial may be had. The operation of this statute is confined with the utmost strictness to the case specified in it. And so it has been held under the forms which this particular provision has at various times assumed. In Bay v. Gage, 36 Barb. 448, a new trial was allowed when the action was tried before a referee, an amendment of the statute having in terms provided for that case. In Sacia v. O’Conner, 79 N. Y. 260, a new trial was refused, where the defendant withdrew his answer and a judgment was entered on a default. In Fowle v. DeWitt, 14 Hun, 93, the court intimates clearly its opinion that a new trial cannot be had where the complaint is dismissed. In Chatauqua Bk. v. White, 23 N. Y. 347, it was held that the statute applied to no judgment other than that rendered on the trial of an issue of fact in the first instance, not to a judgment rendered on an appeal. See also Lang v. Ropke, 1 Duer, 701. So that if the determination of the Courof Appeals in this case had been adverse to the defendants, it is probable their right to a second trial would have been lost by lapse of time, unless saved by the provisions of §1526, which are wholly for the benefit of defendants, and accord no rights to plaintiffs in ejectment. The opinion of Mr. Justice Dugroís full upon the changes which the statute has undergone.
    II. The judgment in this action is not a judgment on an issue of fact within §§1524-1525 of the Code. No question of fact went to the Court of Appeals for trial. The order of the general term did not reverse on questions of fact. The only questions that could be considered or disposed of in the Court of Appeals were questions of law. See Finch, J., per Curiam, (p. 462), in Inglehart v. Hotel Co., 109 N. Y. 454. . Here there is no judgment but that of the Court of Appeals, made the judgment of this court, and so the order refusing the new trial was right,—(1). Because the judgment is not oh the trial of an issue of facts, and—(2). Even if it could be held to be on an issue of facts, it is not otherwise the judgment contemplated by the Code. See also Baylies on New Trials, p. 210.
    III. Quite likely if the defendant had taken the new trial ordered by the general term, and a judgment had been then rendered against him, he would have had a right to a new trial. That right was involved in the case. He did not take the new trial;' on the contrary he elected to stipulate and go to the Court of Appeals ; he forced the defendants to submit an agreed case to that court. This he could do by stipulating that if there was no error of law in reaching the result at general term, there should be judgment absolute upon his right in the action. The Court of Appeals examined the record, no error of law was discovered, and it affirmed the order appealed from, and judgment absolute was ordered against the plaintiff on the stipulation not on the trial of an issue of fact. Clearly Mr. Justice Dugro was right in declaring in his opinion that the stipulation and the judgment were “ inclusive of his right to a new trial.”
    IV. The defendants, therefore, contend that the judgment in this action is conclusive against the plaintiff as respects every right involved in that action ; that it terminated all contention in that action. Bouvier says “ Absolute, complete, perfect, final, without any condition or incumbrance.” If, however, the contention of the plaintiff is sound, this judgment, which the Code says is absolute upon the right of the plaintiff, was, in fact, nothing at all, and the Court of Appeals in this particular case, was a mere moot court. All the cases in the Court of Appeals, though none appear to have been in ejectment, are strong against the claim sought to be maintained by the plaintiff. Cobb v. Hatfield, 46 N. Y. 533 ; Hitchings v. Van Brunt, 28 lb. 335 ; per Woodruff, p. 341 ; per Bacon, p. 345 ; Hiscock v. Harris, 80 lb. 402; Earl J. per Curiam, p. 406-7; Godfrey v. Moser, 66 N. Y. 250.
    V. It is to be observed that there is no disposition in courts to extend the right to a second trial beyond the language of the statutes according it; the reason for the rule, if there ever was a sound one, has long since ceased to exist. The adjudications in this state, already cited establish this. See also Equator Co. v. Hall, 106 U. S. 87 ; Spencer v. McGowan, 53 Texas, 30 ; Miles v. Cauldwell, 2 Wall. 25 ; Sedgwick & Waite, in trial of Titles to Lands, §§ 608-9.
   By the Court.—Freedman, J.

The question involved is a novel one. Many considerations have been advanced for and against the right to a new trial in a case like the present under the provisions of the Code of Civil. Procedure in force at the present time. The question can only be settled by the Court of Appeals and it is important that it should be settled. As the learned judge who made the order appealed from, rendered a well considered opinion, I think it is best, especially in view of the rulings of the Court of Appeals in Godfrey v. Moser, 66 N. Y. 250 ; Hiscock v. Harris, 80 lb. 402, and Conklin v. Snider, 104 lb. 641, as to the effect to be given to the stipulation for judgment absolute filed by an appellant to that court, that the order should be affirmed.

Order affirmed with ten dollars costs and disbursements.

Truax and Ingraham, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    THE OCEANIC STEAM NAVIGATION COMPANY, (Limited), Plaintiff v. THE COMPANIA TRANSATLANTICA ESPANOLA, Defendant.

      Negligence of a party by which a person was injured and a third party became liable for the same—Indemnity from the first to the third party, when it may be enforced.

    In the case at bar, the plaintiff held a lease of Pier 44, North River, from the city of New York, and leased the same to the defendant from December 20, 1886. Defendant authorized the Mobile Steamship Company to use the same, and it was in possession and use of the same on the 17th day of January, 1887; and on that day one of the doors of the house or shed over and on the pier fell upon one John Cleary and his leg was broken. Cleary commenced an action in the United States Circuit Court against the plaintiff for his damages and recovered judgment therein, which judgment plaintiff paid, apd now seeks to recover the amount so paid, and its counsel fees and disbursements from defendant. The plaintiff proved that when defendant took possession of the pier, the door which fell upon Cleary was in good condition and properly secured, and that two nights before the accident the said door or gate was all right.

      Held, That upon the assumption that the plaintiff can call upon the defendant for indemnity in case Cleary’s injuries were the result of defendant’s negligence, it would be unreasonable under the facts and circumstances placed in evidence, from the plaintiff, to infer that the defendant, during the short period of its possession, negligently allowed the said door or gate to become out of repair, and consequently the liability of the defendant to respond to plaintiff must be based upon a negligent use of said door by the defendant; but it appears from the evidence that, at the time of Cleary’s injuries, the defendant was not using the door or the pier in question, and that the Mobile Steamship was, and for some days had been in the possession and use of the pier, with the consent of the defendant. The mere fact that the latter company was there with the consent of the defendant, is not sufficient to impose upon the defendant the liability sought to be enforced upon it by the plaintiff in this action. That this conclusion being reached by the court upon the aspect of the case most favorable to the plaintiff, it is unnecessary to consider the other questions in the case.

      Held, that, upon the evidence and proofs of the plaintiff, the defendant was entitled to a dismissal of the complaint, and the specific reason assigned for the dismissal at the close of evidence on both sides is immaterial.
    Before Freedman and O’Gorman, JJ.

      Decided December 1, 1890.

      Exceptions of plaintiff ordered to be heard in the first instance at general term upon judgment of dismissal of the complaint ordered by the court at trial term.

      Wheeler, Cortis & Godkin, attorneys, and Everett P. Wheeler and Lawrence Godkin of counsel, for plaintiff, argued :—
    I. The plaintiff’s theory of its cause of action is that having been compelled to respond in damages to a third party for the negligence of the Spanish Company, it could call upon the Spanish Company to indemnify it. The principle of law upon which this right of indemnity rests is that laid down in the following cases : Village of Port Jervis v. First National Bank of Port Jervis, 96 N. Y. 550 ; City of Rochester v. Montgomery, 72 lb. 65 ; Churchill v. Holt, 127 Mass. 165 ; Chicago City v. Robbins, 2 Black, 418 ; S. C. 4 Wallace, 657 ; Seneca Falls v. Zalinski, 8 Hun, 571. One of the rules laid down in the Port Jervis case above cited, and applied to the facts in that case, is that where one stands in the position of indemnitor to others who are also liable to a third party, the indemnitor’s liability may be fixed and determined in an action brought against his indemnitee by notice of the pendency of such action, and an opportunity afforded him to defend it (96 N. Y. 557). It is admitted that notice of the pendency of the action against the White Star Company was given to the Spanish Company. When such notice has been given, the person having notice of the pendency of such action, and of the intention of the defendant therein to look to him for indemnity, is bound by the result of such action. City of Rochester v. Montgomery (supra) ; Village of Port Jervis v. First National Bank of Port Jervis (supra); Chicago City v. Robbins (supra).

    II. The evidence of plaintiff’s witnesses establisted conclusively that when possession was taken of the pier by the Spanish Company, the gate which fell on Cleary was sufficiently secure, and that the Spanish Company took the gate down and used it for discharging its steamers, the Mexico and Panama. Cleary was lawfully on the pier engaged in business there, and the defendant, being the lessee of the pier from the plaintiff, was bound to keep it in such condition as should be reasonably safe for the use of persons lawfully there. The Spanish Company was consequently liable to Cleary for the damages he sustained in consequence of the fall of the door. These damages were liquidated by the verdict in the suit of Cleary against the present plaintiff. This judgment plaintiff has paid. In paying it it paid a debt of the defendant, and the law implied a promise on the part of the defendant to repay it to plaintiff.
    III. The record in the Cleary case, including the bill of exceptions, was put in evidence, and it appears distinctly from this that the U. S. Circuit Court did not adjudicate that the premises were in -bad order at the time of delivery of possession to the Spanish Company, but distinctly held that the White Star Company in that suit was liable to the public, for the negligence of the Spanish Company in allowing the pier to get in such condition as to be dangerous. This appears distinctly to have been the ground upon which the White Star Company was. held liable to Cleary, from the judge’s charge in the Cleary case. In that case Judge Wheeler charged the jury : “In the view which we take of this, they (the Whdte Star Company) did not relieve themselves of that duty (i. e. the duty of keeping the wharf reasonably safe) by letting another steamship line come there and collect wharfage. They still retained their lease, and they still were under that duty. They were bound either to exercise it themselves, or to have persons there who would exercise it. When they gave those agents, Munoz & Espriella, and their line, a right to be there and take the wharfage, they assumed or kept upon themselves the duty to keep it in repair the same as before, and they would have to do that, either themselves, or see to it that the other persons whom they let be there did it. If they left it to Munoz & Espriella, or to anybody else, to have the care of the wharf, they became responsible that those persons should exercise this duty and reasonable care. If the defendants are held liable here for that reason they might have their claim over against these other parties. That may all be true. But it does not relieve this defendant because the person who they put in charge might be liable. That is not it. When they let somebody else in, those they let in are let in to exercise this right and duty formally ; and if the party does not do it, it is the same as if they did not do it themselves.” The opinion was as follows : “Pee Cubiam : There was sufficient in the evidence to warrant the jury in finding that the door (or its fastenings) was in a condition of disrepair for a period long enough to justify the inputation of negligence. The fact, which was quite clearly shown, that the door and fastenings were in good repair when the defendant assigned to the Spanish American Company the right to collect wharfage and cranage at the pier, did not relieve the defendant from its duty to keep the wharf in safe condition.” The court says that it “ was quite clearly shown that the door and fastenings were in good order ” when the White Star Company assigned to the Spanish Company. This entirely disposes of Judge Dtjgbo’s assumption that the pier was let to the Spanish Company with a nuisance on it, and conclusively proves that the U. S. Circuit Court held the White Star Company liable for the negligence of the Spanish line in allowing the pier to get into a dangerous condition. The decision of the Circuit Court of the United States in the Cleary case certainly ought to be followed in this case for two reasons : (1.) It is a decision of a co-ordinate court, composed of eminent judges, one of whom was especially familiar with the law of New York wharf property, and it was a decision of the highest Court, which under the law of the U. S. had jurisdiction to try the question. (2.) The decision was based upon the authority of the Court of Appeals in the case of Radway v. Briggs, 37 N. Y. 256, in which the distinction was taken between wharf property and ordinary real estate, and the rule laid down that the lessee of a pier is not entitled to exclusive possession. A public pier is part of a public highway, and must be devoted to public use, and the only right which the lessee takes is the right to collect wharfage and slippage from vessels which occupy the pier. The court said : “ Having accepted the grant, the defendants (i. e. the lessees) were bound to keep the premises in repair. The damage which the plaintiff sustained was caused by their neglect, and they are liable for it.” This rule is supported by the authorities in other states. Campbell v. Portland Sugar Co., 62 Me. 552.
    IV. It is not, however, material to consider whether or not tire Circuit Court was right. When one person is liable to make good to another the consequences of his own wrong, or to indemnify him in any way against the consequences of a suit based upon such wrong, it is immaterial in the judgment of the court that hears the suit against the indemnitee, whether the decision in the first case was or was not in accordance with the law. The decision is final. The court in the second suit will not retry the case. The rule on this subject was well expressed by Mr. Justice Brown in the case of The Village of Port Jervis v. The Port Jervis National Bank, 96 N. Y. 550. In his charge Judge Brown said : “In other words, the defendant could not ask another opportunity or demand another jury to retry any of the questions that had been settled in the Hart case, and the reason for this is plain because it is the policy of the law to prevent a multiplicity of suits or the retrial of the same question of fact, and where a case has been once tried before a jury or the proper tribunal and the question in dispute decided, that decision is binding, not only upon the parties to the suit, but upon the parties privy to it or who bear such a relation to it that the law says they are bound by it.”
    V. The only possible answer to the plaintiffs contention as to the Spanish Company’s liability to it, is that the plaintiff and defendant were both wrongr doers, and that there can be no contribution between wrongdoers.. The reply to this is, in the first place, that the White Star Company was not a wrongdoer at all, for the evidence showed conclusively that at the time possession was delivered to it, the pier was in good and safe condition, and two judges of the U. S. Circuit Court have so declared. And then the true rule where both parties are wrongdoers as expressed by the Court of Appeals of this state is this:. “ Where parties are not equally criminal, the principal delinquent may be held responsible to- the co-delinquent for damages paid by reason of the offencein which both were concerned in different degrees as. perpetrators.” City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 487. And.so it has always been held that where a master has been held liable by a third person for injuries sustained in consequence, of a servant’s negligence or misconduct, the master can sue the servant and recover what he has been compelled to pay the third party. Grand Trunk Ry. Co. v. Latham, 63 Me. 177., The liability to indemnify 'in the .case at bar is not a contract liability. It is a liability that springs by implication of law from the relation of the parties. In a case where a person receives a license from a muncipal body to dig in the streets “ the licensee impliedly agrees to perform the act in such a manner as to save the public from danger and the municipality from liability.” Port Jervis Case, 96 N. Y. p. 557. The judgment in the Circuit Court is relied upon only to show the amount of the damages caused to this plaintiff by the negligence of the Spanish Company. The negligence of that company is clearly proved in this case. The question then arises as to the amount of the plaintiff’s recovery. This was liquidated by the judgment of the Circuit Court. Farmers & Mechanics’ Bank v. Erie R. Co., 72 N. Y. 188, 195 ; Green v. New River Co., 4 Term Rep. 589 ; Second National Bank v. Ocean Bank, 11 Blatchf. 362, 372.

      Stearns & Curtis, attorneys, and James S. Stearns of counsel, for defendant, argued :—
    I. It will be seen at a glance from the above statement, that this action cannot be maintained. The judgment in the Cleary case, which is the foundation of the claim, has adjudicated that the accident was caused by the negligence of -the White Star Company. This being so, it cannot throw the whole or any part of the loss upon this defendant. No state of facts can exist which could have such an effect, because in no event where the negligence of the White Star Company has caused the accident can it recover any indemnity of this defendant.
    II. Even if this defendant had been proved guilty of negligence (which it has not been), this action could not be sustained. There can be no recovery or apportionment among tortfeasors.
    III. Where parties we in pari delicto no action lies. This does not mean that in order to apply the rule the parties must be guilty in the same proportion, but that where either party has participated in the wrongful act, or in the negligence which has caused the accident, he can have no action against the other' joint tortfeasor. The court cannot enter upon a nice inquiry to ascertain how much more guilty the one is than the other, or in what way the scales will turn. The least participation in the act will bar the recovery.
    IV. But the trial of the issues, and the verdict and judgment in the Cleary case, have adjudicated that the accident happened by reason of the carelessness and negligence of the White Star Company, and this throws the whole guilt upon that company.
    V. The judgment in the Cleary case goes further, and as it is a determination of the issues in favor of Cleary; it adjudges that the carelessness of the White Star Company was “in failing and omitting to have said door properly secured.” This is the fact as established by the evidence in that case and in this one. The door was a very heavy one, was intended to be used as a door, was originally built to run on rollers, which rests upon a strip kept in place under the door. These rollers had rotted away, the runway also was rotten, and the door could not be kept in its place, and was always in danger of falling. As soon as any one attempted to use it as a door, for which purpose it was intended, it fell. The accident happened only a month after the making of the lease, and was unquestionably due to the insecure condition in which the White Star Company had left it.
    VI. There can be no recovery in an action by one who has been compelled to pay the injured party, if the actual negligence which caused the injury was participated in by the plaintiff, nor can there be such recovery unless the accident was caused solely by the defendant, and the- defendant was under some obligation to the plaintiff to prevent the accident. Where a city, having control of the streets, has contracted out certain work in the streets, here the city is liable, not for any actual negligence in the doing of the work, but because of the negligence of its contractor. If the contractor has violated his contract, by doing the work in a negligent manner, or has failed to put up barriers when he has contracted to do so, then the city is liable in the first instance, solely for the negligence of its contractor, and it has a right of action on the contract for the damages which it has been compelled to pay. But, if the city has failed to exact a contract from the contractor to place barriers around the excavations, then the city cannot recover against the contractor the damages it has been compelled to pay because it has no contract on which to hold him. City of Buffalo v. Holloway, 3 Seld. 493. Where a city has licensed a party to make alterations in a street, or to place obstructions therein. The city is liable not for its own negligence, but because of the negligence of the licensee, and there is an implied covenant on the part of the licensee that the work shall be done in a careful manner, and that there shall be no negligence therein. Village of Port Jervis v. 1st. Nat. Bk., 96 N. Y. 550. Where a party has created a nuisance in a street, by means of an unlawful excavation or obstruction, for which the city is liable because of its general duty to abate such nuisance. Here, also, the city has not participated in the creation of the nuisance, and, perhaps, knows nothing about it. The city, upon paying the damages, has an action against the wrongdoer. City of Rochester v. Montgomery, 72 N. Y. 65.
    VII. The accident happened while another steamship company than the defendant was using the pier, and the defendant was nowhere shown to have had anything to do with it at the time. The White Star Company had taken a lease of this pier from the city many years before ; had erected thereon the shed, and agreed to keep it in repair ; had given to this defendant the use of the premises for a few weeks, and had allowed the door in question to become so dilapidated that it could not be kept in place while being used as a door without some kind of a support. While the door was being used by a steamship company other. than this defendant, it fell and broke Cleary’s leg. Cleary sued the White Star Company, and recovered because the accident was caused by its negligence in allowing the door to become so insecure and maintaining a nuisance. The White Star Company now tries to shift the loss upon this defendant, although this defendant had nothing whatever to do with the accident. A recovery in such á case would be a violation of the rules of law and justice.
   By the Court.—Freedman, J.

If it be assumed, that, as the plaintiff contends, the door which fell on Cleary was sufficiently secure at the time that the defendant obtained from the plaintiff possession of the pier, and that the judgment recovered by Cleary in the United States Circuit Court against the plaintiff is no adjudication to the contrary, and if it be further assumed that the plaintiff, having been compelled to pay the said judgment, can call upon the defendant for indemnity in case Cleary’s injuries were the result of defendant’s negligence, it would be unreasonable, under the circumstances of this case, and especially in view of the testimony of Michael Hannon a witness called by the plaintiff, and who testified that two nights before the accident the said door was all right, to infer that the defendant during the short period of its possession negligently allowed the said door to become out of repair, and consequently the liability of the defendant to respond to the plaintiff would have to be found in a negligent use made by the defendant of said door. But the evidence given at the trial shows that at the time of Cleary’s injuries the defendant was not using the door or pier in question, and that a Mobile SteamShip Company was, and for some days had been, in the possession and use of the pier. The mere fact that the latter company was there with the consent of the defendant, is not sufficient'to impose upon the defendant the liability sought to be fastened upon it in this action.

This conclusion having been reached upon the aspect of the case most favorable to the plaintiff, it is unnecessary to consider the other questions in the case. The defendant was entitled to a dismissal of the complaint upon plaintiff’s proof, and the specific reason assigned for the dismissal at the close of the evidence on both sides is immaterial.

Plaintiff’s exceptions should be overruled and judgment should be ordered for the defendant dismissing the complaint with costs.

O’Gorman, J., concurred.


author: By the Court.—Truax, J.

text:
    MARGARET A. CASE, Respondent v. THE PHŒNIX BRIDGE COMPANY, Appellant.

      Contract—Complaint, default in answering two causes of action therein, and demurrer as to third—Subsequent proceedings—Referee, trial before and rulings considered—Referee’s power of amendment of pleadings.

    In this case, the complaint set up three causes of action; one to recover the amount due on the contract set forth, another to recover for extra work and material, and a third to recover for damages sustained by plaintiff because of the' failure of defendant to furnish a certain structure and materials as agreed, in time for progress of the work, and by the unwarranted delay plaintiff was obliged to keep in service and pay for more days work than she would have paid had defendant performed and fulfilled the contract on its part. Defendant did not answer the first two causes of action, but demurred to the third, and judgment was rendered in favor of plaintiff on defendant’s default on the first two causes of action. Subsequently, on the demurrer being overruled and defendant answering the complaint as to the third cause of action, the issues raised thereby were, by consent of parties, tried before a referee, whose rulings on the trial are the subject of consideration on this appeal. Held, that the judgment entered upon the first two causes of action was an adjudication to the effect that plaintiff had performed all the conditions of the contract, and the defendant on this trial was not entitled to contend against the same.
    The defendant contended that the referee erred in admitting certain evidence on the trial that tended to vary the written contract. The referee admitted the evidence, ruling at the same time that if it tended to alter or modify the contract, he would grant a motion on the part of defendant to strike it out. lX No such motion was made by the defendant. Held, that it . was not error for the referee to admit the testimony conditionally. Also held, that the testimony did not vary the contract. That it related to the time when plaintiff was to commence work on the contract and was not in conflict therewith.

      Held, that the referee did not err in refusing to" allow defendant to amend its answer on the trial by setting up a new defence. The referee had not the power to allow such amendment to be made.

      Held, that it was not error for the referee to admit evidence on the trial showing the daily rental value of the plant of machinery used by the plaintiff in the work, for such evidence tended to show one element of the damage sustained by the plaintiff through the delay of the defendant in the performance on its part of the conditions of the contract.
    Before Freedman and Truax, JJ.

      Decided December 1, 1890.
    Appeal from a judgment entered upon the report of a referee.

      Sherman & Sterling, attorneys, and John A. Garver of counsel, for appellant.

      Edward S. Clinch, for respondent.
   By the Court.—Truax, J.

The amended complaint contained three causes of action : one to recover the amount due on a contract, another to recover for certain extra work, and the third to recover for damages sustained by plaintiff because of the failure of defendant to perform certain conditions of said contract on its part. The defendant allowed judgment to be entered against it on the first two canses of action, bnt defended as to the third cause of action.

It was held on a former appeal (55 Super. Ct.Rep. 25) that the complaint (as to the third cause of action), in effect, alleged that plaintiff and the force she had under pay to perform the work she contracted to perform upon certain materials and a certain structure, which materials the defendant contracted to furnish asrapidly as the progress of the work required, and which structure was to progress as fast as possible, were kept by the act and neglect of defendant waiting an unreasonable length of time for such materials and structure, and that she was obliged to pay her men for their working time in fifty-five days more than she would have paid them had defendant performed the conditions of the contract on its part, to the plaintiff’s damage.

The printed case shows (see fol. 223) that on the trial evidence was given showing delay on the part of the defendant in furnishing said materials, and evidence was also given that tended to show that plaintiff was damaged by such delay. Under the ruling on the former appeal, a cause of action in favor of the plaintiff against the defendant was proved on the trial.

The defendant contends that plaintiff did not perform all the conditions precedent on her part, and that for that reason the complaint should have been dismissed unless the judgment entered upon the first two causes of action was an adjudication that she had performed all such conditions.

We are of the opinion that said judgment was such an adjudication, for if plaintiff had not substantially performed all such conditions precedent, she would not have been entitled to recover in an action brought upon the contract. That judgment is as controlling as it would have been if it had been entered in an action brought by plaintiff to recover on the first cause of action alone.

The defendant also contends that certain evidence that tended to vary the written contract was admitted on the' trial. The ’ referee said, that he would admit the evidence provided it did not vary or alter the contract, and further said, that he would grant a motion to strike out the testimony in case it tended to alter or modify the contract. No such motion was made. We think that it was not error for the referee to admit the testimony conditionally. And, moreover, the testimony did not vary the contract— it added to the contract a provision not in conflict with the contract upon which the contract was silent, viz., the time when plaintiff was to begin work under the contract.

The referee did not err in refusing to allow defendant to amend its answer on the trial by setting up a new defence. The referee did not have the power to allow such an amendment.

It was not error for the referee to admit evidence showing the price at which the various articles constituting the plant used by plaintiff in doing the work mentioned in the contract could be let by the day. Such evidence tended to show one element of the damage sustained by plaintiff through the delay of the defendant.

The judgment is affirmed with costs.

Freedman, J., concurred.