text:
    Kennedy v. The Harlem Railroad Co.
    The costs of an appeal, when a new trial is granted, are in the discretion of the court. When, upon an appeal, a report of a referee, or the verdict of a jury, is set aside as clearly and palpably contrary to evidence, and the court thinks the justice of the case requires it, the party obtaining a new trial will only be required to pay, as a condition of it, the costs of the former trial, and the costs of the appeal will be ordered to be costs in the cause, and to abide the event. So in á case, in which the report is obtained upon the testimony of a single witness, whose accuracy and good faith are open to very great suspicion, and whose testimony, as the case presents it, was not entitled to credit.
    Before all the Judges,
    April Term, 1854.
    This action was referred; the referee reported in favor of the plaintiff, and from the judgment entered on the report the defendants appealed. The court, at general term, set aside the report, as unwarranted by the evidence, and granted a new trial, on condition that the defendants paid the costs of the reference and of the subsequent proceedings. The case is reported sivpm, p.-.
    The question what costs defendants should pay, as a condition to the granting of a new trial, not having been discussed on the argument of the appeal, he was permitted to be heard on that point. After hearing counsel for both parties, and taking the matter into consideration, the judgment of the court was announced.by
   Oakley, C. J.

He stated that the court had considered the question, and come to the conclusion that there was no justice in compelling a party who succeeded on an appeal to pay the costs of such appeal, in all cases and under all circumstances, as a condition to obtaining the relief to which he had shown himself entitled, although such relief was a new trial.

That on setting aside a report of a referee on an appeal from, a judgment entered thereon, or the verdict of a jury on an appeal from an order denying a new trial, in cases in which they are set aside as being clearly and palpably contrary to evidence, the party obtaining a new trial should not be required to pay more, in the first instance, than the costs of the former trial, and that the costs of the appeal should be ordered to be costs in the cause, and abide the event.

That the peculiar character of the testimony, on which the report was based in this action, made the case a proper one for the application of that rule. That the order, granting a new trial, must be so modified as to be on condition, that the defendants paid the costs of the reference, and of subsequent proceedings to the taking of the appeal, and directing the costs of the appeal to be costs in the cause, and the right of either party to them to be dependant on the event. (Code, § 306; Saunders v. Devies and wife, 14 Eng. L. & E. 532; Skiffington v. Clark, 20 Id. 356.)


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    Brown v. W., J. W., & D. H. Ward.
    The stock or bonds of a company, pledged as collateral security, may be sold at public auction, after the debt is due, upon a demand of payment, and due notice of the time and place of sale, unless a sale is restricted by positive stipulation. Such sale, when made in the city of Sew York, may be at the Merchants’ Exchange. Any other mode of sale must rest upon express agreement.
    It is otherwise with promissory notes, or commercial paper, pledged as collateral security. In such ease the pledgee must hold the paper until maturity, and collect and apply the money to the payment of the debt.
    On a motion for judgment, on account of the frivolousness of a demurrer, a defendant will not be allowed to put in an answer, if its allegations of fact set up a defence which is clearly invalid and untenable at law and in equity.
    Special Term,
    May 10, 1854.
    The facts of the case are fully stated in the opinion of the court.

      Mr. Rodman, for plaintiff.

      Mr. Woodbury, for defendants.
   Hoffman, J.

The action is upon a promissory note, made by the defendants in favor of the plaintiff, and dated the 23d of September, 1853.

The defendant, Joseph W. Ward, demurred. A motion was noticed for this day to strike out the demurrer as frivolous and for judgment. The demurrer admittedly cannot be sustained. On the 5th the defendants obtained an order to show cause on this day why an answer, annexed to the order, should not be allowed to be served. The defence set up in the answer is, that the plaintiff had received certain bonds of the Bock Biver Bailroad Company as collateral security for this and another note of the defendants; that these bonds were given without any authority or consent to sell the same if the amount was unpaid. Nevertheless the plaintiff has sold the same without his consent. He prays, by way of counter-claim, the excess of the value of the bonds over the debt.

In order to raise the question fully, it has been agreed upon the trial, that a notice given by the plaintiff to the defendants-of the intended sale of the bonds at the Merchants’ Exchange, for the 27th of April, 1854, unless the note was previously paid, should be considered as before the court; also the receipt of the plaintiff given upon getting the bonds, and an affidavit showing the sale, a previous notice of it of a week in several of the daily newspapers, and a sale at twenty-eight per cent, on their par value. The proceeds were about $1,120; The-notes were payable at six months from their respective dates. And the agreement expressed in the receipt was, that they were to be returned to Ward, Brothers & Company, upon payment of the said notes, or a proportionate part, as each was paid.

In Wheeler v. Newbold (in this court, April, 1853) the action was for the recovery of the sum of $611.73. Certain promissory notes had been deposited as collateral security for a loan of $2,000. The amount of the collaterals was $2,614.73. The debt not being paid at maturity, the collaterals were sold at private sale for $2,020. Notice of his intention to sell was given by the holder.

The plaintiff took the ground that the collaterals could only be sold at public auction after notice of the time and place.

But Chief Justice Oakley held, for the purposes of the trial, that a loan upon the pledge of commercial paper did not give the lender the right to sell the paper at all. That if the loan was not paid at the time agreed upon, the lender might hold the paper until maturity, and collect and apply the money to the payment of the loan, and upon this ground directed the jury to find a verdict for the plaintiff for the excess of the col-laterals over the amount of the loan and interest. But the judge stated that as the point was new, and of great practical importance in this city, he should direct the judgment to be suspended until a case was made to be heard at the general term. The court at general term affirmed the decision made at the trial.

But the court did not intend to question or modify the general law, well established, as to the sale of securities of personal property, other than mercantile paper, pledged as collateral security for a debt. Since the time of the case of Hart v. Ten Eyck, before Chancellor Kent, the right of the pledgee to sell after the debt is due, upon reasonable notice, has been unquestioned. And a custom has grown up, and has been sanctioned by the courts, of selling stocks at the Merchants’ Exchange.

The leading case of Tucker v. Wilson, which was decided by the House of Lords-, reversing unanimously Lord Harcourt’s decree, is strikingly similar to the present. There was a loan secured by Exchequer Annuities, the transfer to be void upon payment at a particular day, without power to sell; a default of payment; notice of sale; a sale at the Exchange by a sworn broker at the then fair value, and a bill to redeem. The only difference is, that the borrower desired a delay of a week in selling. (See Br. P. C., p. 284). In Little v. Barker, 1 Hoffman’s Ch. Rep. 488, fifty shares of stock of the Staten Island Bank were deposited as collateral security for a loan of money upon a note, with authority to sell on non-performance of the promise. Afterwards a receipt was given, taken as a substitute for the note, which expressed, that 40 shares of such stock were received as collateral security for the $2,000, the amount of a note dated that day, which I agree to convey on the prompt payment of the same.” The court considered the law to be, that if no notice had been given of the sale of stocks pledged, the pledgee could be called upon to replace 'them, paying the amount of the debt. But that the title of the purchase could not be affected without proof of his personal ' knowledge of the loan and pledge.

In Castello v. The City of Albany (1 Legal Observer, 25, 1842), before me as Assistant Vice-Chancellor, the question arose in this form. The hypothecation of stock was general, without any power to sell expressly given. The pledge was to secure a running account. Demand of the balance was repeatedly made. The pledgee then caused the stock to be offered at the Board of Brokers, where he offered it at the rate of 53 per cent., which he could not get. He afterwards sold it at private sale, without notice of the time or place.

The case of Wood v. Hamilton, in the Superior Court, and others were referred to, as deciding that a sale at the Board of Brokers of stock pledged, could not be made without an express stipulation to that effect; and that a sale, to be valid, must be upon reasonable notice, and at public auction. And it was held, that the defendant must replace the stock or allow for the difference in value on his debt.

Applying these authorities to the present case, I consider that a right to sell stock, held as collateral security, follows the pledge, unless restricted by positive stipulation that such right might be exercised after the debt is due, upon a demand for payment, and notice of the time and place of sale at public auction, which, in Hew York, may be at the Merchants’ Exchange. Any other mode of sale must rest upon express agreement.

The distinction between the cases which I have cited, and that of Wheeler v. Newbold, is apparent. It would be most injurious in a mercantile community, where commercial credit is of so delicate a character, to allow the notes of a party to be exposed for sale before their maturity.. But the stocks of a Company, like those of a Government, are the subject of common transfer and sale, without the possibility of such an objection attaching.

The result is, that judgment must be entered for the plaintiff, for the amount demanded, with interest and costs.

       On consultation, this decision was approved by four judges.


author: By the Court. Bosworth, J.

text:
    Kanouse, Plaintiff in error, v. Martin, Defendant in error.
    This court, upon a reversal of its judgment by the Supreme Court of the United States, on a writ of error directed to it and issued out of that court, will render such judgment, as will strictly conform to and fully comply with the judgment and opinion of that court. It has neither the disposition, nor, in its own view of its duty, the right to make any other order, or enter any other judgment, upon the idea that the equities of either party may justify it.
    (Before Oaklet, C. J., Dube, Campbell, Boswouth, and Hoiimak, J.J.)
    May 13, 1854.
    Mabtot sued Kanouse in Hew York Common Pleas, by declaration, in which his damages were laid at over $500.
    Kanouse, being a resident of another State, took the necessary proceedings, and applied to that court for an order removing the cause into the Circuit Court of the United States. Martin, in an affidavit that less than $500 was due him, or in dispute, was. allowed to amend his declaration, so as to claim less than that sum, and thereupon the application was denied. Kanouse took no further steps in the cause, and a judgment having been rendered against him by default, he sued a writ of error out of the Supreme Court. When issues were joined, in the proceedings had thereon in the Supreme Court, the cause was transferred to this court to be decided. This court affirmed the judgment of the Common Pleas. The - ease, and the reasons assigned by this court for its judgment, are reported in 3 Sand. Sup. C. R. 593.
    On an appeal being taken to the Court of Appeals, that court, on the motion of Mr. Martin, dismissed the appeal, on the ground that it had no jurisdiction. (6 How. P. R. 240.)
    Kanouse then prosecuted out of the Supreme Court of the United States a writ of error directed to this court.
    Such proceedings were had in that court that it ordered and adjudged, “ that the judgment of the said Superior Court be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Superior Court, for further proceedings to be held thereon, in conformity to the opinion of this court.” The opinion of that court is reported in 15 How. H. S. Sup. C. R. 198.

      On the mandate of that court, .and a certified copy of its opinion, Kanouse applied to this court for such relief as it might deem meet, and particularly for an order, that the remittitur which had been sent to it from the Court of Appeals, be returned to that court, to the end that he might move for such relief in that court as he might be advised.
    The defendant in error, among other things, urged that this court might have dismissed the writ of error when the cause was before it, and might properly and rightfully now quash or dismiss it.

      W. C. Noyes and A. S. Garr, for plaintiff in error.

      C. O’ Oon/nor and J. If. Martin, for defendant in error.
   By the Court. Bosworth, J.

The Supreme Court of the United States has reversed the judgment of this court. That court has sent its mandate to this court, that further proceedings be had therein, according to the opinion and judgment of that court.

The opinion of that court, according to the copy of it furnished to us, is, that the act of Congress not only conferred on the defendant (Kanouse) the right to remove this suit by filing his petition and bond, but it made all subsequent proceedings of the Court of Common Pleas erroneous, and necessarily required the court to which the judgment was carried by a writ of error, to inspect those proceedings which showed the judgment to be erroneous, and which could not be placed on the technical record consistently with the act which granted the right of removal.”

It is the clearly expressed opinion of that court, that the act of Congress required this court to inspect those proceedings, and to have reversed the judgment brought before it by the writ of error, for the reason that those proceedings showed it to be contrary to law and erroneous. If this court is merely to obey the mandate of the Supreme Court, and conforms its judgment to the opinion and judgment of that court, it can experience no difficulty in determining what action it is incumbent upon it to take. The only action required is a judgment of this court reversing that of the Court of Common Pleas, instead of that heretofore rendered, and which is itself reversed.

It was suggested and urged on behalf of the plaintiff below, that this court will properly obey the mandate, and properly execute the powers rightfully exercisable by it on the writ of error, by quashing or dismissing the writ of error. (Davis v. Packard, 10 Wind. 50-74; 8 Peters’ U. S. R. 312-321.)

To show that such a disposition of the cause, instead of a reversal of the judgment of the Court of Common Pleas, would have been proper, our attention has been called to the following passages in the opinion of the H. S. Supreme Court:

“ It should be observed that the judgment of the Superior Court did not proceed upon any question of jurisdiction. If it had quashed the writ of error because the laws of the State of Hew York had not conferred jurisdiction to examine the case, this court could not have treated that judgment as erroneous.”

But this court had jurisdiction to examine the case. It not only had jurisdiction to examine the case, and reverse the judgment for any errors in law appearing upon the record brought before it to be reviewed, but it was the duty of the court to examine it, and reverse the judgment if such errors appeared. This court did not feel authorized to regard the proceedings brought up by the certiorari as any part of the record to be considered, and disposed of the cause as it would have done if there had been no pretence that any such proceedings had ever been had.

The Supreme Court is of the opinion that on that point this court erred. That opinion states, that the error of the Superior Court was therefore an error occurring in the exercise of its jurisdiction, by not giving due effect to the act of Congress under which the plaintiff in error claimed; and this error of the Superior Court in the construction of an act of Congress it is the province of this court to correct.” “ The act of Congress . . . necessarily required the court to which the judgment was carried by a writ of error, to inspect those proceedings which showed the judgment to be erroneous, and which could not be placed on the technical record consistently with the act which granted the right of removal.”

This court could not have doubted its jurisdiction to examine and pass upon the effect of those proceedings upon the judgment subsequently rendered, if they had in its judgment formed part of the technical record. Nor would its action have been embarrassed by any doubts as to its jurisdiction, if it had been of the opinion that the act of Congress formed the law of the case, by which it was to determine the papers to be inspected, and on which its judgment was to be founded; and that such act required them to inspect those proceedings, and give them the effect to which they would have been entitled, if the modes of procedure in the Supreme Court of this State had made them a part of the technical record, and authorized this court to treat them as being a part of it.

In Davis v. Packard, 10 Wend. 73, the Court for the Correction of Errors adjudged, that that court had “ no jurisdiction, power, or authority to reverse a decision of the” (Supreme Court of this State) “ for any error in fact, or any other error than such as appears upon the face of the record or proceedings of the said Supreme Court, and that no other errors can be assigned or regarded as a ground of reversal of a judgment of said Supreme Court, than such as appear upon the record and proceedings of the said Supreme Court, and which relate to questions which have actually been brought before the justices of that court for their decision thereon, by a plea to the jurisdiction of that court or otherwise.”

The fact on which a reversal was sought in the Court for the Correction of Errors, was one, the existence of which had not been asserted by plea, nor offered to be proved in the Supreme Court. There had been no proceeding in any stage of the cause in the Supreme Court, in which it had been suggested that Davis was consul-general of the King of Saxony.

The Supreme Court of the United States, when that case, and the proceedings had in the Court for the Correction of Errors, were subsequently brought before it, said, that “if the jurisdiction of the Court for the Correction of Errors does not, according to the laws by which the judicial system of Kew York is organized, enable that court to notice errors in fact in the proceedings in the Supreme Court, not apparent in the face of the record, it. is difficult to perceive how that court could conform its judgment to that of this court, otherwise than by quashing its writ of error to the Supreme Court.”

Those remarks have no application to such a case as this.

It was erroneous in the Common Pleas to proceed in the action and render judgment, after the proceedings that had been had in the cause to remove it to the Circuit Court of the United States; and if that was an error requiring the judgment to be reversed, this-court had jurisdiction on the writ of error to examine the case, and pronounce a judgment of reversal, if the error had appeared upon an inspection of the only proceedings, which its own view of the practice of the court authorized it to regard as, in contemplation of law, existing and before it.

The proceedings which showed the error had occurred in the cause, and were in fact before the court. The Supreme Court of the United States is of the opinion, that by force of the act of Congress they were properly before it, in such sense, that that act required it to inspect them, and render such judgment as was required to correct the error committed by the judgment brought up by the writ of error.

Our view of the duty imposed upon this court by the opinion and judgment of the Supreme Court is clear. We must conform our judgment, which has been reversed, to the opinion and judgment of the Supreme Court of the United States, by reversing the judgment of the Court of Common Pleas. Judgment will be entered accordingly.


text:
    Murray v. De Gross.
    The Marine Court in the city of Sew York has jurisdiction of the actions named in § 1, chap. 611?, of the laws of 1858, in those cases only in which the damages claimed do not exceed §500.
    When such an action is brought in a court of record, and the damages claimed do not exceed §500, the plaintiff can recover no more costs than he would have been entitled to, if he had brought the action in the Marine Court.

      But when, in such an action brought in a court of record, the damages claimed exceed $500, if the plaintiff recover, his right to costs will he regulated by the Code.
    (Before Oaklet, C. J., Düer, Campbell, and Boswortb, J.J.)
    May 13, 1854.
   The court, at a General Term, decided the points as above stated, and the opinion of the court is reported in vol. 12 of fhe Legal Observer, page 311.


text:
    Seely v. Prichard.
    The court, at Special Term, has power to enlarge the time for taking an appeal from a judgment to the General Term.

   Tots was so decided at a General Term, held before Oakley C. J., Duer, Campbell, and Hoffman, J.J.

The case, with the opinion of the court, is reported at length in the Leg. Ob. vol. 12, p. 245.


author: By the Court. Slosson, J.

text:
    Benedict v. Caffe, and Others.
    The fact that a plaintiff is permitted to enter judgment on a verdict, for the purpose of better securing the recovery, does not deprive a defendant of the right to move to set aside the verdict, on a case duly made and settled.
    "Where a defendant, in an action on contract, dies pending the action, and it is continued, hy order of the court, against his personal representatives, the plaintiff will recover costs against the estate of the deceased, if the verdict he one which would have entitled him to recover costs of such defendant, had he not died.
    (Before Oaklet, G. J., Buer, Campbell, Hoffman, and Slosson, J.J.)

      The facts appear in the opinion of the court.

      J. Laroque, for plaintiffs.

      jBurrell & Bliss, for defendants.
   By the Court. Slosson, J.

In this case the plaintiff having recovered a verdict, I allowed the defendants time to make a case, but with privilege to the plaintiff to enter his judgment as security.

One of the defendants, originally, was Henry Laverty, second endorser of the note sued upon, who answered the complaint and died before trial, and the suit was continued under § 121 of the Code against his executrix.

A motion is now made—

I. (By all the defendants) that the order made by me, so far as it allows the plaintiff to enter his judgment, be vacated, on the supposition that after judgment it is too late to move for a new trial on the ground of the verdict being against evidence.

II. (By the executrix of Laverty) that she be exempted from costs.

I. The entry of the judgment in this case, does not prejudice the motion for a new trial on the ground of the verdict being against evidence. (Rule 8, Superior Court.) The terms of the rule plainly imply that such motion may be made, notwithstanding the entry of judgment, and we find nothing in the provisions of the Code inconsistent with it.

II. It is contended on the part of Mrs. Cattell, executrix of Laverty, one of the defendants, that she is not liable for costs.

She contends that the provisions of § 41, tit. 3, ch. 6, 2d part R. S. are applicable to her case.

The only clause in that section which can he urged as having any application is the following:—“ ¡Nor shall any costs be recovered in any suit at law against any executors or administrators, to be levied of their property or of the property of the deceased, unless it appear that the demand on which the action was founded was presented within the time aforesaid (see § 34), and that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the preceding provisions, in which cases the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just.”

This section occurs in the article entitled “ Of the Duties of Executors and Administrators in the Payment of Debts and Legacies,” and should be taken in connexion with the other sections in that article m pari materia, all which manifestly relate to claims existing, but not in suit, at the time of the testator or intestate’s death, and not to those in respect to which suits' had been commenced against the testator in his lifetime.

We think, moreover, that the very language of the clause in . question suggests the same construction. A suit “ against an executor or administrator,” imports a suit instituted against such party; and when, in addition to this, the section speaks of the demand on which the action is founded as one which may have been presented within the six months prescribed by the executor’s notice, and which the executor may have refused to refer, or neglected, after such presentment, to pay, the inference seems conclusive, that the section only contemplated claims not put in suit at the time of the testator’s death.

Apart, however, from this natural import of its general phraseology, the provision in question is in terms confined to costs in suits at law against executors or administrators. How, before the Code, a suit at law, like the present, commenced against the testator,' would have abated on his death, the cause of action not surviving against the other defendants, and his death occurring before verdict. (2 R. S. 483, §§ 1 and 3).

This section, therefore, could never have been intended, originally, to apply to a case like the present. .

Then, is the result varied by the circumstance, that under the Code the distinction between legal and equitable remedies no longer exists %

I do not see upon what principle the abolition of this distinction is to have the operation of giving an entirely different meaning to those provisions of the E. S. in which that distinction is recognised, and which create liabilities or secure rights on the theory and assumption of this very distinction.

There is another consideration not to he lost sight of. The principle upon which executors are ever chargeable personally with costs, or upon which, before the Code, the estate was chargeable with the same, is the misconduct of the executors, and this rule could only be applied in actions commenced by or against them. In actions commenced by or against a deceased party, the laches or fault, if any, either in the prosecution or defence, would be committed by himself; and though he die in the progress of the suit, and it be revived against his representatives, there is no reason why his estate should not bear the costs of his default, nor any reason why his executor, a mere substituted party, and not chargeable with, saor in a condition to commit, the laches or default, which is punishable with costs, should come in and claim the benefit of those statutory provisions which were enacted solely for the protection of that class of persons when innocent of malconduct in respect to the prosecution or defence of the claim in suit.

There is a provision in the Code, § 317, which relates to this subject, and was referred to on the argument. It embraces not only executors and administrators, but “ trustees of an express trust, and persons expressly authorized by statute to sue or defend,” and makes them all liable to costs equally as parties prosecuting or defending in their own right, to be levied out of the estate or trust fund, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defence. By the second clause, however, it is provided that the section shall not be construed to allow costs against executors or administrators where they are now exempted therefrom by the section (41 of the R. S.) in question, and this reservation is much relied on by defendant’s counsel. The effect of this saving clause is, in our judgment, to leave the question as respects executors and administrators, in cases like the present, exactly where it was under the revised statutes, except that it adds the case of mismanagement and bad faith on the part of the executor in prosecuting or defending the action, to the instances in which costs may, by the R. S., be charged on them personally. The defendant, therefore, gains nothing by this section of the Code. It is true, it recognises the provisions of section él of the R.- S., but only to preserve them in their integrity, and not in a way to impress upon them a new or any other meaning or construction than they had when first enacted.

We think the question is against the executrix in this case. She stands in the action as a mere substituted party in the place of Laverty, against whom the suit was instituted, and who had actually answered the complaint before his death. The action, which, but for the Code, would have abated by the death of Laverty, is, under the provisions of the latter, revived, or continued, by substituting her as a party in his place, and to represent him.

The effect of such revival, under § 121 of the Code, of an action which would formerly have been purely legal, is the same as that of the revival of an old equity suit against the representatives of a deceased defendant. It is a continuance of the same suit. Such representatives were allowed eighty days after service of the order of revivor upon them, within which to appear and answer or disclaim; in default of doing which, their appearance was entered by the court, and the answer of the deceased stood as the answer of. his representatives. Even an injunction did not fall by the abatement. (Legget v. Dubois, 2 Paige, 211; 2 R. S. 184, &c., old paging.) I am not aware that in an equity case thus revived the complainant lost his costs as against the estate of the decedent.

On the whole, we think the motion should be denied in both its branches. If desired, a clause may be inserted that the order is to be without prejudice to the defendant to move for a new trial, on the ground of the verdict being against evidence.

As both questions are somewhat novel, no costs of the motion should be allowed.


author: Duer, J.

text:
    Anonymous.
    An order for the examination of a judgment debtor, under § 292 of the Code, mil not be made unless it appears that an execution against Ms property has been issued and returned unsatisfied, since the Code went into effect.
    At Chambers,
    August 2.

      An application was made for the usual order for the examination of a defendant as a judgment debtor, but it appeared from the affidavit of the applicant not only that the rendition of the judgment, but that the return of an execution unsatisfied, was before the Code went into effect.
    The counsel for the applicant relied upon the case of Jones v. Lawlin (1 Sand. S. C. R. 922).
   Duer, J.

Although it was held in Jones v. Lawlin, that the provisions of § 292 of the Code are applicable to prior judgments, it appears from the head-note of the Report that an execution had been issued and returned unsatisfied after the Code went into effect; and but for this circumstance, I cannot believe that an order for the examination of the debtor would have been made. I am clearly of opinion that the provisions of the Code, from the language used, are applicable only to executions thereafter to be issued and returned, and consequently must refuse- to make the order applied for.

(Oakley, 0. J., concurred.)


text:
    Wood v. Marvine.
    A court of equity has- no power to restrain by injunction the publication of the-proceedings or evidence in another action, whether pending in the same or any other court. In cases in which such a prohibition is deemed to be necessary or proper, it must be made by an order in the cause, granted by the court in which the cause is pending.
    At Chambers,
    August, 1854.

      Motion for an injunction upon the complaint. The complaint set forth in substance, that another action was pending in this court in which the plaintiff, as defendant, was charged with various acts of fraud, and relief was sought against him upon that ground; that the issues in this action had been referred and testimony in support of the charges taken before the referee, but that the testimony was not closed, the witnesses on the part of the defence not having been yet examined; and that the defendant Marvine, from malicious motives, threatened to publish immediately the pleadings and evidence which had been given; and therefore- prayed that such publication might be enjoined and restrained, as calculated to injure the plaintiff in his character and reputation, and to prejudice him in making his defence before the referee.

      L. B. Shephard, for plaintiff.

      J. T. Brady, for defendant.
    Who cited 8 Paige, 24; 3 Edward Ch. 515; Eden on Injun. 227; 6 Howard P. R. 89 ; 7 Howard P. R. 19.
   Duer, J.

Sitting as a judge in equity, I am satisfied that I have no power to continue this injunction. I do not believe that a court of equity has ever attempted to restrain the publication of the proceedings in a pending action at law, either upon the grounds set forth in this complaint, or upon any other; nor do I believe that had the jurisdiction ever been claimed, the courts of law would have submitted to its exercise. It would have been regarded and resisted as a manifest usurpation of power. It is the exclusive privilege of the court in which the action is pending to determine whether, for any reason, the publication of the proceedings ought to be forbidden, and where the prohibition is deemed to be necessary or proper, it can only be regularly made by an order in the cause. The case is not altered by the fact that the action is pending in this court, which is now a court of equity as well as of law, for the Code has certainly not enlarged the equitable jurisdiction, which it has given. It has given us no power to grant any other relief upon a complaint than the Court óf Chancery could have formerly granted upon a bill. If the plaintiff is entitled to the relief which he asks, he must seek it by a petition or motion in the action in which he is defendant. He has mistaken his remedy in filing this complaint.

The motion to continue the injunction is denied, and the injunction heretofore granted is dissolved.

(Oakley, C. J., concurred.)


author: Bosworth, J. Oakley, C. J., Bosworth, J.

text:
    Cockle v. J. A. & H. A. Underwood.
    An action on contract, after an answer has been put in containing a counter-claim, which is admitted by omitting to reply to the answer, cannot be discontinued by the plaintiff, as a matter of course, without leave of the court, on payment of defendant’s costs. The court, in such a case, will not grant leave to discontinue, and thus prevent the defendant from obtaining a judgmentupon the counter-claim, unless special grounds be stated, showing such an interference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendants.
    If the plaintiff has examined the defendants as witnesses in the action, permission to discontinue will ordinarily be on the condition that plaintiff stipulates that defendants may read the deposition, on the trial of any new action to be brought for the same cause.
    At Chambers,
    Sept. 16, 1854.
    The plaintiff moves for leave to discontinue this action on payment of defendants’ costs of the action. The motion. is resisted on the ground that the answer sets up a counter-claim, which is admitted of record, no reply having been put in to the answer..
    The summons was served Hay 13, 1854. The answer to the complaint was served June 10, 1854. After the ■ lapse of twenty days thereafter, the plaintiff examined both defendants as witnesses, pursuant to the Code, and the examination was not concluded until the 8th instant.
    The .complaint in substance is, that the defendants agreed to pay plaintiff one-third of their commission for selling 484 railroad bonds, on plaintiff’s effecting a sale for them; that he did this •; that their commission was $7,725, and the plaintiff’s part was $2,575; that he has received of this sum $755 ; that the balance of $1,820 is due, and for this he prays judgment.
    The answer denies the making of any such agreement, or that the plaintiff effected any sale of any bonds for the defendants, or that the plaintiff has received $755, or any other sum, from defendants as a part of the .pretended commissions.
    The answer, then, “ for a further defence,” “ by way of counter-claim,” alleges that defendants, on the 2d of September, 1853, loaned the plaintiff $60.0, to be repaid on demand; that payment of it has been demanded and not made, and prays that it may be set off against any claim that may be established, and also judgment for it. On the 13th of September the plaintiff served written notice of discontinuance of the action, and tendered $5.12^- as defendants’ costs of the action, which defendants refused to accept. On the same day he served an order on defendants, to show cause, on the 16th inst., why the action should not be discontinued on payment of defendants’ costs of the action. Between the time of the tender, and the time of serving the order, the defendants served notice of trial for the October term of the court.

      R. E. Mount, for plaintiff.

      Wm. Bliss, for defendants.
   Bosworth, J.

This motion is made on the theory that the plaintiff is entitled, on paying defendants’, costs of the action,, to such an order as he moves for, as a matter of course. Under the old system, a plaintiff could enter a rule, .in the book of common rules, discontinuing the action on payment of costs. Such a rule, in an action at law, could be entered at any time before trial, without an application to the court. (Graham’s Pr. 663-4.)

In the Court of Chancery, the complainant might move to dismiss his own bill, with costs, as a matter of course, at any time before the decree. This is stated in the books of practice to be the rule. (Barb. Ch. Pr. vol. i. 228.)

The practice of the courts, as it existed when the Code took effect, consistent with "the Code itself, is continued, subject to the power of the courts to relax, modify, or alter the same. (Code, § 469.)

The plaintiff insists that the pre-existing practice, in relation to discontinuing actions, is consistent with the provisions of the Code, and that it has not been modified by any rule of the Supreme Court, or of this court. The defendants on the other hand contend, that the practice allowing a plaintiff to dismiss his action before trial, as a matter of course, on payment of costs, is inconsistent with certain provisions of the Code.

§§ 149 and 150 allow a defendant to set up a counter-claim, and recover upon it; if admitted by failing to reply to it, or on proof of it, if it is controverted. (§§ 168 and 274.)

If the action of the plaintiff arises on contract, the defendant may set up as a counter-claim- any cause of action arising on contract, whether the damages are liquidated or not. This could not have been done before the Code. The defendant may notice the action for trial, prove his claim when the cause is reached, or take judgment for it, if admitted by the pleadings. (§ 258.) In this respect the practice, in suits at law, has been altered. The object of the Code seems to be, that a defendant sued on contract and having causes of action against the plaintiff, arising on contract, may litigate them in that action, and have a judgment if entitled to it.

The costs of an independent action are avoided, one claim may be used to satisfy another, to the extent due upon it, the one having the larger claim may have a judgment for the excess, each party is made an actor and may bring the action to trial.

There would seem to be no reason for permitting a plaintiff to discontinue on the mere ground of his disinclination to proceed further in his action, especially when a counter-claim has been set up in the answer, and no reply has been made, and liberty to reply is not asked.

Cases may occur which would justify a court in making such an order. But such cases must present some grounds to justify the inference that the plaintiff would suffer some substantial prejudice if the order was not granted.

On the other hand, it is obvious that the granting of such an order might deprive a defendant of a substantial right. If a counter-claim should be outlawed, at the date of such an order, it would be manifestly unjust to grant it. Other cases readily suggest themselves in which it would be improper to grant such an order as a matter of course.

It is unnecessary to undertake to state any rule by which all-applications may be determined.

It is sufficient to say, that after a counter-claim has been set up, and admitted of record, the court will not allow the plaintiff to discontinue his action, as a matter of course; special grounds must be shown in favor of the application. They must make a case, rendering such an interference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendant. The motion must be denied.

From the order denying the motion the plaintiff appealed to the General Term. The appeal was heard before all the judges, and on the 7th of October, 1854—

Oakley, C. J.,

delivered the opinion of the court, affirming the order on the grounds on which it was made. The chief justice also remarked, that it would be manifestly unjust, in such a case, to permit the action to be discontinued, even when sufficient cause was shown for it, without requiring the plaintiff to stipulate that the defendants might read their examination in evidence, upon the trial of any new action that might be brought. Unless such a stipulation was required, a plaintiff might examine the defendants under the Code, and if the testimony disproved the cause of action, he would at once discontinue it, if a discontinuance was allowed as a matter of course, and bring a new action, if for no other reason, to deprive a defendant of the benefit of the testimony he had been compelled to give. He could read it as a matter of right, on the trial of the action in which it was taken, but not in any other. The order was affirmed, without prejudice to the plaintiff’s right, to move for leave to reply to the counter-claim, and also to discontinue, on affidavits making a case calling for the interposition of the court.

At Chambers, Oct. 28,1854.

The plaintiff, on affidavit, moved for leave to reply to the counter-claim set up in defendants’ answer, and also for leave to discontinue this action, without prejudice to the prosecution, by the defendants, of their counter-claim. The only fact stated in the affidavit, which was not stated in that on which the motion was first made, is, that the plaintiff “ has been advised by his counsel in this action, and verily believes, that it will be for the plaintiff’s interest to discontinue his action.”

Bosworth, J.

When this action was formerly before me, on a similar motion, I decided that a plaintiff in an action on contract, in which an answer setting up a counter-claim had been interposed, and which was admitted of record, would not be allowed to discontinue on payment of costs, unless it was shown that such permission was proper, to prevent the plaintiff from being inequitably prejudiced in his rights or remedies.

It is not averred that the trial and decision of the claim, in this action, will subject the plaintiff to any inconvenience beyond that which will be experienced on trying it, at any other time, nor that there is the least difficulty in obtaining and giving all' the evidence now which he hopes to be ever able to give, or that in fact exists. There is, therefore, no ground shown in support of the motion to discontinue, except that the plaintiff is not inclined to prosecute this action further, although he is not willing to renounce his claim. The motion to discontinue is denied, biit the plaintiff may reply to the counter-claim set up in the defendants’ answer, within ten days, on payment of $7 costs of opposing this motion, but without prejudice to the defendants’ right to bring the action to trial when reached, if it has been noticed for trial, or to notice it for the next term of the court, if not already noticed.

The other justices being consulted, concurred in the decision.


author: Bosworth, J.

text:
    Lamoreux v. The Atlantic Mutual Insurance Company.
    A complaint in an action to recover the amount insured by a policy of insurance, which (among other things) “prays that, if the same be necessary, said policy may be reformed in such manner as fully and clearly to express the intention and agreement of the parties,” a plaintiff will be compelled to amend, either by striking out such hypothetical prayer, or so as to directly ask that the policy may be reformed, and to state what the reformation should be.
    If relief of the latter kind is not sought, the complaint should not contain any allegations which are utterly irrelevant to every other point. If it is sought, facts should he stated, which, if proved or admitted, would entitle a plaintiff to such relief
    At Chambers,
    Sept. 22, 1854.
    This is an action on a policy of insurance, issued by the defendant, to recover $7,000, the sum insured, with interest. The complaint stated, among other things, that the policy executed was the usual printed form, used in certain cases; that it did not precisely state the actual agreement of the parties; that certain words, in order to definitely express that agreement, which ought to have been, were not written on the margin of the policy, but omits to state what they are. 3STor does it state what change should be made in the language of the policy in order to express the agreement of the parties to it.
    The complaint, among other things, “ prays that, if the same be necessary, said policy may be reformed, in such manner as fully and clearly to express the intention and agreement of the parties,” and concludes by demanding judgment for the sum of $7,000, the amount insured, with interest.
    The defendant now moves for an order to compel the plaintiff to so amend the complaint, that it shall unconditionally pray for a reformation of the policy, or wholly omit to ask any such relief.

      D. Lord, for defendant.

      Geo. F. Betts, for plaintiff.
   Bosworth, J.

The Code requires a complaint to contain “ a demand of the relief to which the plaintiff supposes himself entitled.” (§ 142, sub. 3.) The nature of the relief demanded, in many cases, determines the mode of trial. If the prayer is for a judgment, that the plaintiff recover of the defendant a sum of money, the action must be tried by a jury. (§ 253.) If other relief be prayed, the cause is to be tried by the court, unless the court orders otherwise. (§ 254.)

If in an action on contract the prayer is simply for a judgment for a sum named, or in the language of the Code, if the action is for the recovery of money,” the clerk, in case no answer is put in, must assess the damages. (§ 246, sub. 1.)

If it is not merely for the recovery of money, but other relief is prayed, and must be given, to enable a plaintiff to recover, judgment cannot be given without an application to the court. (Id. sub. 2.)

• The summons, in the one case, must be. different from that in the other. (§ 128.)

If the action is for the recovery of money only, if the plaintiff recovers $50 (if it be on contract), he recovers costs. (§ 304, sub. 4.)

But if he seeks other relief, and the action be such as formerly could be brought only in chancery, the costs are in the discretion of the court. (§ 306.)

Hot only the imperative' requirements of the Code, but the policy, and all the provisions of it, before referred to, demand that the specific relief sought should be stated distinctly and directly.

If the question of reforming the policy is to be litigated, a defendant should be advised of it by the complaint. Unless facts are stated sufficient to entitle a plaintiff to that relief, a defendant may desire to demur to so much of the complaint as contains that cause of action. (§ 145.)

Unless the reforming of the policy is sought, and a judgment reforming it is demanded, all allegations in the complaint, having no relation to any other point, should be omitted.

This complaint does not state what words were Omitted to be written on the margin of the policy, nor what precise reformation is sought. The plaintiff may amend his complaint within twenty days as he may be advised. If he does not amend, the words, “ that if the same be necessary,” will be stricken out of the complaint, and defendant may have ten days to answer a demurrer, after the complaint has been amended.

(Duer and Hoffman, J.J., being consulted, concurred.)


author: Bosworth, J,

text:
    Neilson v. The Mutual Insurance Company.
    When a case, containing the facts upon which a controversy depends, is agreed upon, under § 372 of the Code, and judgment is rendered thereon, at a General Term, in favor of the defendant, he is not entitled to costs for any proceedings before notice of trial, nor to a fee of $15, before argument, nor to a fee of $30, for argument. He may be allowed a trial fee of $12. The hearing at a General Term, is, in effect, a trial of the issues of law arising upon the admitted facts.
    At Chambers,
    Sept. 26, 1854.
    This case came before the court, at General Term, under § 372 of the Code, and judgment was rendered in favor of the defendant. In his bill of costs presented for adjustment, were these charges, viz.
    Costs of proceedings before notice of trial, - $ 5

      “ before argument, - - - 15
    “ for argument,.....30
    The clerk dissallowed them, and the defendant applied to have the adjustment corrected.

      Wm. Booth, for defendant.

      S. H. B. Judah, for plaintiff.
   Bosworth, J,

held (with the concurrence of Oakley, C.J., and Duer, J.), that the clerk’s adjustment was correct. He said that § 373 is explicit, that no costs “ for any proceeding prior to notice of trial,” shall be allowed. The argument at General Term, is a trial of the questions of law arising upon the admitted facts. For this trial, the clerk allowed $12. The items of $15 and $30 are allowed only on appeal (§ 307, sub. 6). A hearing under § 372 is not one on an appeal, but an original hearing, or trial.


text:
    Radde v. Ruckgaber.
    In an answer to a complaint, in an action for falsely, maliciously, and without reasonable or probable cause, procuring the plaintiff to be arrested, it is not competent for a defendant to set forth the minute facts and incidents which he expects-to prove, and rely upon as sufficient to establish the general proposition, that there was probable cause. Such allegations will be stricken out on motion. Whether a defendant, in such an action, can in any case allege specific facts, constituting, in judgment of law, the existence of probable cause, quere.. Such facts seem to be merely evidence, pertinent to the issue, whether the arrest was made without reasonable or probable cause.
    At Chambers,
    Sept. 25, 1854.
    This is an action for falsely, maliciously, and without reasonable and probable cause, malting an affidavit, and causing the defendant to be arrested. The plaintiff moves, that the answer be made more definite and certain, or that certain parts be stricken out. The part, moved to be stricken out states facts which the defendant insists constitute, in judgment of law, probable cause.

      T. Sedgwick, for plaintiff.

      P. Y. Cutler, for defendant.
   Bosworth, J.

The making of the affidavit, the arrest of the plaintiff, and his subsequent discharge from arrest by a final order of the court, are admitted by the answer. The essence of the allegations in the complaint, relating to other matters, is, that this arrest was caused by the malicious act of the defendant, without any reasonable or probable cause. Whatever allegations a complaint may contain, to properly state this general fact, the answer may deny. An answer denying them and setting up no new matter is sufficient. It is surely a perfect answer, which simply and merely denies the allegations constituting the plaintiff’s cause of action. On such an issue, a plaintiff must give evidence tending to prove the want of probable cause. Until he has done this much, the defendant is not required to give any evidence. When a cause of action has been proved, the defendant may answer it by any competent evidence adapted to weaken or overthrow it.

Every allegation of a complaint not denied, is not thereby admitted to be true, irrespective of its character. It is only the material allegations of a complaint that are admitted, by an omission to controvert them. (Code, § 168.)

Hew matter constituting a defence, is generally understood to be such as admits and avoids the action. It will be an answer to the action, though established as alleged. An answer which merely negates the essential allegations of a complaint, or states circumstances, which, if testified to by credible witnesses, would disprove them, is not one containing new matter within the meaning of those words, as used in § 149 of the Code.

It is not necessary, in order to dispose of any part of this motion, to hold, that a defendant may not allege facts, which,if true, would in judgment of law constitute probable cause. It may be, that all the material facts contained in the affidavit, and constituting a ground of arrest (if true), were untruly and therefore falsely stated, and yet there may have been, in judgment of law, probable cause for making the affidavits.

But the facts constituting probable cause, if proved, are, after all, only evidence that one indispensable allegation of the complaint is untrue, viz. that the affidavit was made without any reasonable or probable cause.

Are such facts “ new matter,” constituting a defence, or are they evidence that certain allegations of the complaint which must necessarily be proved, to establish a cause of action, are not true ? They are not new matter, in the sense that a release, or accord and satisfaction, or that the cause of action is barred by statute, is.new matter. All matters constituting, under the old system, a good special plea, might be true, and yet it might be true, that the cause of action stated had accrued. The theory of a special plea was, that it admitted the plaintiff’s cause of action.

It cannot be true, that the affidavit was made, and the arrest procured, without reasonable or probable cause, and at the same time be true, that on facts which can be stated and proved, there was reasonable and probable cause for making the one and procuring the other.

But without deciding that such an answer cannot he made under the Code, it is enough to say, that no facts of that kind are alleged, which, in judgment of law, constitute probable cause.

The defendant may amend his answer in 20 days as he may be advised. If he wishes, in addition to denying the material allegations of the complaint, to state the particular facts which he expects to prove, and intends to rely upon, as sufficient in law to constitute probable cause, he can of course do so, subject to the right of the plaintiff to take such action with respect to that part of the answer as he may be advised.

If such an answer would be admissible, it clearly would not be proper to enumerate in it the minute facts or incidents expected to be proved, to establish the general fadts deemed sufficient to constitute probable cause. Evidence is not to be alleged. (Duer and Hoffman, J.J., concurred in the decision.)


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    Durand v. Hollins.
    A citizen of another State, who is sued by a citizen of this State, in a court of this State, and who files a petition to remove the cause to the Circuit Court of the United States, and at the same time complies with all the provisions of the act of Congress relating to such matter, does not lose the right conferred by such act, because he had been arrested previously under an- order requiring him to be held to bail, and on such arrest had executed with sureties such an undertaking as is required by § 181 of the Code, although no exception had been taken to such sureties, and the time for excepting had expired, before the petition was filed.
    Executing such an undertaking is not, in theory nor in fact, an act done in court. It is not an appearance in the action, nor equivalent to an actual appearance, within the meaning of the words, “ entering an appearance,” as used in the act of Congress. They import an act in court, by which a defendant concedes that the State Court has full jurisdiction over him.
    At Chambers,
    Sept. 28, 1854.
    The defendant, being a citizen of the State of Delaware, and having been sued in this court by the plaintiff, a citizen of this State, on the 9th of September entered his appearance in the action with the clerk of the court, and at the same time filed with the clerk a petition to remove the cause to the Circuit Court of the United States for this district. The petition is now presented to the court, and such security is offered as complies with the act of Congress. The defendant was arrested on the 24th of August last, under an order requiring him to be held to bail. He then executed an undertaking with two sureties, as is required by § 187 of thenCode. On the 28th of August, the sheriff returned the order of arrest to the plaintiff’s attorney, with a certified copy of the undertaking. Ho notice was served on the sheriff by the plaintiff’s attorney, within ten days thereafter, that he did not accept of the bail.
    The motion was opposed mainly on the ground that the petition should have been presented before the time for excepting to the sureties in the undertaking executed by the defendant on his arrest had expired. That the expiration of such time, without any exception having been taken to the sureties, was of the same effect, in this respect, as putting in special bail under the old system.

      L. B. Shepard, for plaintiff.

      J. M‘Keon, for defendant.
   Bosworth, J.

Full compliance with the act of Congress gives the defendant an absolute right to have this action remoyed to and tried in the Circuit Court of the United States. The plaintiff’s counsel insists, that the defendant has not complied with it, but, on the contrary, by executing an undertaking on his arrest with sureties, who were not excepted to within the time allowed by § 193 of the Code, which time expired before the petition was filed, has lost the right to remove the action. He relies on Redmond v. Russell, 12 J. R. 153. It was held in that case, that a defendant who puts in special bail must, at the time of filing bail, also file his petition to remove the cause, and that one subsequently filed would be too late. This was so held on the ground that filing special bail was entering an appearance, according to the practice of the court—that such being the effect of the act of putting in bail, the defendant, consequently, then, and by that act, entered his appearance, within the meaning of those words as used in the act of Congress, and of course was bound to then file his petition, as the two acts are required to be simultaneous. It will be borne in mind, that filing special bail with the clerk of the court was, in legal effect, an act in court, by which the defendant conceded that the court had full jurisdiction over him. Ho appearance was formally or actually entered in this case, until the filing of the petition, both of which were done on the 9th of September. The execution of the undertaking requisite to procure his discharge from arrest, was not an act of the defendant, done, either in theory or in fact, in court. It is obvious that giving such an undertaking was not itself entering an appearance, any more than giving the bond formerly taken by the sheriff on the arrest of a defendant in a bailable action, conditioned that the defendant would appear and put in bail, was entering an appearance. (2 R. S. 348, § 14.)

It clearly could not be required of a defendant to file a petition simultaneously with executing such an undertaking. That would be impracticable. If the giving of.that undertaking was not entering an appearance, then none was entered until the 9th of September; for between those periods the defendant took no steps in the action. Although the time for excepting to the bail had elapsed before the petition was filed, yet, so far as the papers before me state, nothing then appeared on record, or on the files of the clerk of the court, to show that bail had been put in. In Suydam v. Smith, 1 Denio, 265, the court remarked that “ the terms ‘ entering an appearance,’ used in the act of Congress, are not appropriate words to indicate the putting in of bail They simply mean that the defendant shall, by entering his appearance, concede that the State court has full jurisdiction over him.” In this action, the defendant had done no act in court, nor did any paper signed by him or any attorney retained by him, appear on the files of the court, which the Code, or the rules made under it, declare to be equivalent to an appearance, or an actual appearance.

A party’s appearing, by the filing of special or common bail, has no application to proceedings under the Code. I am of the opinion, that the defendant had not entered his appearance, within the meaning of those words, as used in the act of Congress, until it was actually entered on the 9th of September. The prayer of the petition is therefore granted.


text:
    Ranney v. Russell.
    An offer, under § 386 of the Code, that a plaintiff may take judgment for a sum named, must expressly state that it may he taken with costs. Unless it does so, the plaintiff, on recovering a sum sufficient to carry costs, will he entitled to them as a matter of course, although the judgment recovered was less favorable to the plaintiff than the one which he was allowed by the offer to enter.
    At Chambers,
    Oct. 2, 1854.
    This is a motion to correct the adjustment of costs made by the clerk. The action is upon contract for the recovery of money. The defendant, before answering, served an offer in writing, “to allow judgment to be entered against him in favor of the plaintiff in this action for the sum of fifty dollars.” The offer said nothing about costs, and plaintiff’s attorney took no notice of it. The action was put at issue and referred, and the referee reported in favor of the plaintiff—the sum of fifty dollars. The clerk allowed the plaintiff all his costs of the action. The defendant insists that the plaintiff should pay costs subsequent to the offer, as a less favorable judgment was recovered than the one offered. That it was not essential to a legal offer, that it should state that judgment might be taken “ with costs.” In support of this proposition, he relies on Megrath v. Va/rmyck, 3 Sand. S. C. R. 750. The plaintiff’s attorney insists, that inasmuch as the offer served did not, by its express terms, authorize a judgment “ with costs,” the. service of the offer was a nullity.

      B. F. Andrew, for plaintiff.

      W. H. Bell, for defendant.
   Bosworth, J.

When Megrath v. Vanwyck arose and was decided, the Code, as it then was, did not require that the offer should, by its terms, authorize a judgment to be entered “ with costs.” (Session laws of 1849, p. 690, § 385.)

By the act of July 10,1851, § 385 of the Code was altered, and enacted in its present form. The offer which that section authorizes as it now stands, must, by its terms, allow the judgment to be taken “ with costs.”

When no offer has been made, a plaintiff recovering fifty dollars in such an action as this, recovers costs of the action as a matter of course (§ 304, sub. 4).

To deprive a plaintiff of that right, a defendant must make an offer authorized by § 385. It is only under that section that an offer can be made. If one is made which is not authorized by it, it is wholly nugatory, and may be treated as a nullity. A plaintiff cannot be affected by the service of it, when he has taken no notice of it.

We understand the amendment in this respect, made by the act of 1851, to be material. If a defendant, under that section as it now reads, wishes to make an offer, which a plaintiff must accept at the peril of paying the subsequent costs, unless he recovers a more favorable judgment than the one offered, he must, by the terms of the offer served, allow judgment to be taken with costs. It is of no consequence what the nature of the action may be, whether it be one in which, after trial, costs are in the discretion of the court, or whether it be one in which a recovery of $50 would cariy costs. Hor is it of any consequence that the judgment offered is less than $50. Ho matter for what sum, or to what effect, the defendant may offer to allow judgment to be taken, the offer must expressly state that it may be taken with costs, or it will be a nullity.

Under this view of the Code, the adjustment was correct, and must be confirmed.


text:
    Griswold v. Laverty.
    In. an action by the holder, against the second endorser of a promissory note, a complaint which states the making of the note, and sets forth a copy of it, and which also states that the payee and the second endorser, before its maturity, endorsed it in writing, and that before it fell due, the plaintiff became and is now the holder and owner of it, is good in substance, without a formal averment that the second endorser delivered it to the plaintiff. The word endorsement, in common acceptation importing a delivery, the averment of an actual endorsement and possession by the holder before maturity, is equivalent to an allegation that it was endorsed to the plaintiff. The two averments are together sufficient, primd facie, to establish that the holder has a good title to the note.
    (Before Oakley, O. J., Dueb, Campbell, Hoffman, and Slosson, J.J.)
    Oct. 1854.
   The complaint was upon a promissory note, made by Coffee and Cutter, payable to the order of Daniel T. Youngs, and endorsed in blank by the latter, and also by the defendant.

On a demurrer to the complaint, the latter was held to be good, and the points above stated were decided at General Term. The case, with the opinion of the court, is reported in the N. Y. Leg. Ob. vol. 12, p. 316.


text:
    George Bowman v. William P. Earle.
    A bill of particulars limits a recovery to the matters named in it, and proof cannot be given at the trial of claims not embraced in it.
    After a verdict or report of a referee for a greater sum than is claimed in the complaint, a complaint should not be amended by increasing the amount of damages claimed, except upon the terms of granting a new trial, and payment by the plaintiff of the costs of the trial already had, and of the costs of opposing the motion.
    When an order, obtained by a party, is settled ex parte, entered, and a copy of it served, and the judge who made it, on a re-settlement which he directs, modifies it by altering the terms of the original draft order, the party obtaining the order, if he would limit the time in which to appeal from it, must cause it to be entered as it is finally settled, and serve a copy of it. From the time it is resettled, and as resettled, it is the only order there is in relation to the matter covered by it.
    (Before Oakley, 0. J., Dubb, Campbell, and Boswobth, J.J.)
    This action comes before the court on an appeal from each of three several orders made in it, and upon a motion to dismiss one of the appeals. In the complaint, the plaintiff states that he was retained by the defendant as his attorney and counsel, to defend two actions brought against the defendant in the Hew York Common Pleas, and that he did defend them, and made disbursements, &c. One of those actions was brought by a Mr. Stone, as plaintiff, and the other by a Mr. Baskerville. The plaintiff furnished a bill of the particulars of his claim. By that he claimed, in the action brought by Stone :
    Costs,......$126.23
    Trial fee,......25.00
    Bill of exceptions, - 20.00
    $171.23
    In the action brought by Baskerville:
    Costs,......$134.24
    An answer was interposed, containing allegations of facts, which the defendant claimed should reduce the amount which the plaintiff might, but for the matters thus alleged, be entitled to recover.
    On the 3rd of March it was referred to a referee, “ to adjust the costs, and certify the counsel fees (if any), and the amount of compensation which the plaintiff is entitled to, if entitled to recover in this action, reserving other questions for-trial in the usual course.”
    On the 5th of May, 1854, the referee made his report, in which he reported that in the suit brought by Stone, the plaintiff was entitled to receive for—
    Costs,......$115.00
    Trial fee,......25.00
    Bill of exceptions, - 15.00
    Retaining fee and drawing answer, - 25.00

      And in the suit brought by Baskerville:
    For costs,. - - - - - - $123.50
    Retaining fee and drawing answer, - 25.00
    negotiation,.....25.00
    On the motion to confirm the report, the three items of $25 each, not included in the bill of particulars, but allowed by the referee, the defendant insisted could not be allowed, because, among other objections made, they were not included in the bill of particulars. The judge, at Special Term, disallowed one of these items, and in other respects confirmed the report.
    The order on that decision was entered on the 2'6th of June, 1854. The defendant obtained an order the next day, requiring the plaintiff to show cause why the order of the 26th of June should not be resettled and modified. On the 1st of July it was resettled and modified, and on the same day as resettled, was entered.
    The defendant appeals from that order. The plaintiff moves to dismiss that appeal, because it is an appeal from an order “ entered July 1, 1854,” insisting that in truth there is no order of that date, and that the order confirming the report is dated and was entered the “ 26th of June, 1854,” and that a copy of it was served on defendant’s attorney on the 27th of June. The motion is also based on affidavits, that no copy of any order made on the 1st of July was ever served on the plaintiff, and that the notice of appeal from the order of “ July 1, 1854,” was not served until the 6th of September, 1854.
    On the 7th of August, 1854, an order was made at Special Term, allowing the plaintiff to amend his summons and complaint in regard to the amount claimed, so as to admit of a recovery of the sum of $328.50—the amount allowed by the report as confirmed. The complaint itself prayed judgment for $305.47. The order declared that it was made on the condition that the referee’s report be set aside, and a new trial had before such referee. It also provided that the costs of both trials and $10 costs of the motion, to the plaintiff, abide the event of the action. From that order the defendant appeals.

      After these appeals were taken, an order was made, staying all proceedings on the part of the plaintiff until a decision upon them at the General Term. The plaintiff moved to so far modify this order as to allow him to notice the action, and put it on the trial calendar, and bring to trial the issues not embraced in the order of reference. That motion was denied on the 18th of September, and from that order the plaintiff appeals.
   By the Court. Bosworth, J.

In this action, the plaintiff seeks to recover for services rendered by him as the attorney and counsel of the defendant, in the defence of two suits. He puts his own estimate upon his services in his complaint, and states his own judgment of their value, and names in the summons and in his complaint an amount for which he prays judgment. His complaint being general, he furnished a bill of the particular items of Ms claim. In it were no charges for two matters allowed in the report of the referee.

A bill of particulars has the effect to restrict the proofs, and limit the recovery, to the matters set forth in it. It is regarded as an amplification of the pleading to which it relates, and is to be construed as forming a part of it. The order of reference did not authorize the referee to take proof of any matters not included in the bill of particulars. It follows, therefore, that the order confirming the report was erroneous, as the report allowed to the plaintiff two items of $25 each, viz. in one suit for Retaining fee and drawing answer,” and in the other for “ Negotiation ”—neither of which was included in the bill of particulars. That order should be reversed, if the appeal was taken within the time allowed by law.

Was it contrary to the uniform and settled practice of the courts to allow the plaintiff to amend his summons and declaration by increasing the amount of damages claimed, on the terms imposed by that order? In Dox v. Dey, 3 Wend. 356, the court refused to allow such an amendment after verdict, except upon the terms of the plaintiff’s abandoning his verdict, and paying the defendant’s costs of the trial, and of opposing the motion.

In Corning v. Corning, 2 Selden, 97, the judge, at the trial, made an order after verdict, allowing the plaintiff to amend his complaint, by increasing the amount of damages claimed to correspond with the verdict. Judgment was thereupon entered corresponding with the verdict. The court at General ■Term, on appeal, reversed the order allowing the amendment, and ordered the judgment reversed, unless the plaintiff remitted the excess recovered beyond the amount claimed: The excess was remitted, and the judgment was then affirmed for the reduced amount. On appeal to the Court of Appeals it was decided, that after verdict the court had no power to amend a complaint by increasing the amount of damages, except upon the condition of the plaintiff’s relinquishing his verdict, paying the costs of the trial already had, and consenting to a new trial.

This amendment was not made after verdict, but was made after the report of a referee had been confirmed, which fixed the amount of the plaintiff’s recovery, unless it should be reduced on some ground other than the reasonable worth of the plaintiff’s services. The value of the services, unless shown to have been so negligently and unskilfully performed, as to have prejudiced the defendant, was no longer an open question after the report had been confirmed. The principle of the rule declared in Corning v. Corning would seem to be as applicable to the report of a referee as to the verdict of a jury.

It seems to be a just rule to apply to a case in which a plaintiff seeks to amend solely to enable him to recover for an ordinary service, in conducting a suit as attorney and counsel, for which he did not see fit to make a special and separate charge or claim in his bill of particulars. There is no pretence that he omitted to make such charge inadvertently, or by oversight, or that he supposed the terms of his bill of particulars were broad enough to enable him to make proof of it on the trial. The order did not allow the bill of particulars to be amended. Neither did it require the plaintiff to pay the costs of the first reference, or provide that in any event the costs of that reference, and of resisting the order to amend, should be recovered by the defendant. It declared that the plaintiff’s right to them should abide the event of the suit. We think this order should be reversed.

We see no reason for interfering with the order denying the motion, to modify the order staying plaintiff’s proceedings until the decision of the appeals taken by the defendant.

As to the motion to dismiss the appeal taken from the order of July 1st, 1854, it is obvious that the’appeal was taken from the order of June 26, 1854, as resettled on the 1st of July.

Instead of making an order on the 1st of July, by its terms modifying the order of the 26th of June, so as to make two separate orders, the order of the 26th of June was resettled, portions of it were erased or expunged, and additional or substituted clauses were incorporated into it. As resettled, it became, and thence was, the only order in the action confirming the report. In that form it was entered on the 1st of July. It was in effect and in fact an order obtained on the plaintiff’s motion. He has not served a copy of it, as it was finally settled and entered. From an order, the party against whom it is obtained may appeal, within thirty days after written notice to him of the order. (Code, § 332.) Ho such notice having been served, it follows that the appeal was not taken too late, and the motion to dismiss it must be denied.

The orders of July 1st and August 7th, 1854, must be reversed, and that of the 18th of September, 1854, affirmed; and the order of July 1, 1854, must be so modified as to disallow the three items of $25 each, allowed by the report of the referee, being in the suit brought by Stone, for “ Retaining fee and drawing answer, $25and in the suit brought by Baskerville, for “Retaining fee and drawing answer, $25,” and for “ negotiation, $25and in all other respects confirming it, without prejudice to defendant’s right to prove on the trial any facts set up in his answer, which would justly entitle him to have the amount reported against him reduced. Ho costs of obtaining the orders, or upon the appeals, to be given to either party.