text:
    Roswog vs. Seymour.
    After a cause has been called for trial, a stay of proceedings until the return of a commission to take testimony, will not be granted, where there has been ' great laches in making the motion, which laches is wholly unaccounted for.
    (Before Jones, J., at Special Term,
    February, 1867.)
    Motion by the defendant, for a commission to take testimony, and for a stay of proceedings in the meantime.
    «7. F. Daly, for the plaintiff.

      J. R. Roberts, for the defendant.
   Jones, J.

I think a stay of proceedings should not.be granted, for the reason that there has been great laches in making this motion, which laches is wholly unaccounted for.

The main and real defense to this action is indicated in the affidavit used in behalf of the defendant on the motion to vacate the order of arrest issued in the action. That defense is, that it is a custom of trade among jewelry commission merchants doing business at Hew Orleans to send their principals’ goods into Mexico for sale; that the defendant, being such merchant, did, according to that custom, send- the plaintiff’s (his principal) goods to Mexico for sale by one Lucius H. Shusel, his confidential clerk and traveling agent; that said Shusel was taken sick and robbed of the goods in question.

The defendant could have required no time to ascertain that Shusel was a necessary witness; nor was any communication with Shusel requisite to enable the defendant’s attorney to draw the proper interrogatories. Hor does it appear that the defendant did not know, in September, 1866, where Shusel resided.

As to the custom. In order to aid the defendant, that must be a well known, established general custom of the trade. If that were the nature of the custom, I am at a loss to conceive why the defendant (he being in the trade) could not, in September, 1866, have given his attorney the names of sufficient witnesses to prove it. Every person engaged in the trade must have known the custom, and the defendant, being in the trade, must have known, to a great extent, who were engaged in it. The interrogatories necessary to be put to prove the custom are so simple that no conference with the. witnesses is necessary. At all events, the names of persons who could testify to the cus-. tom could have been obtained, with slight diligence, in the month of October.

The matters proposed to be proved—that there was a general though secret removal of goods from Hew Orleans, to avoid confiscation, and the state of the Confederate laws and military regulations, are clearly, inadmissible, because the defendant did not send the goods to Mexico for any such reasons.

The proposed testimony as to Shusel’s absence, and as to what he brought back, is clearly inadmissible.

There is no. sufficient reason shown why the necessary information as to witnesses to prove Shusel’s character could not have been obtained as early as November 1, 1866. As early as September 29, 1866, the defendant knew what his defense was to be, and knew the line of proof necessary to support it. If any degree of diligence had been used, it is hardly possible but that all the information necessary to move for a commission, and to prepare the necessary interrogatories, could have been obtained as early as ¡November 1, 1866.

The excuse offered in the moving papers is wholly insufficient to authorize a stay, after the cause has been called for trial.

Motion for a commission granted, but a stay denied, without costs.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    William Fullerton, plaintiff, vs. Willis Gaylord, defendant.
    1. A defendant is not entitled, of course, to a bill of particulars, in all cases.
    2. Section 158 of the Code prescribes in what cases, and how, a bill of particulars may be obtained, and draws a broad distinction between one class of actions, and all other actions. In that class of actions the defendant may demand a copy of the account; while in all other actions a bill of particulars can only be obtained by special order of the court.
    3. The class of actions in which the defendant may, of course, demand a bill of particulars, consists of those where the cause of action alleged in the pleading is an account against the adverse party, the items of which have not been set forth in the pleading. In all other cases, the court may order a bill of particulars to be furnished.

      4. Where the gist of the cause of action stated in a complaint was that the defendant made a certain agreement with the plaintiff’s assignor; that he had broken that agreement, by not delivering a specified number of bonds which he had received, and should, under that agreement, deliver to the plaintiff; and the agreement, the receipt of the bonds by the defendant, the number of bonds which the plaintiff claimed, and a particular description thereof, and the refusal of the defendant to deliver them, were all fully set forth; Held that, being thus set forth, a bill of particulars could not be demanded as of course. . z
    6. In an action for an account and settlement of moneys and bonds received by the defendant from a corporation, upon a claim of the plaintiff against said corporation, under an agreement to procure a settlement of such claim and pay over to the plaintiff a specified portion of the proceeds, it is wholly immaterial what such claim against the corporation consisted of, or how it arose. The defendant is therefore not entitled, of course, to a bill of the particulars of such claim.
    6. It is not the office of a bill of particulars- to furnish a defendant with facts whereon to found an affirmative defense in his behalf; but simply, when he is called on to pay an account stated generally in the complaint as amounting to a certain sum, to give him the particular items of that account, so that he may determine as to the correctness of the account, as to what items he will admit, and as to what he will insist on the plaintiff’s proving affirmatively ; and also that he may know what he will have .to contend with, on •" the trial; and also that the general pleading, aided by the bill of particulars, will, in the event of a subsequent action between the same parties, show what items were disposed of in the former action.
    7. Under the provisions of the Code authorizing the examination of parties to actions before trial, the testimony of a party may be taken before issue joined. The right to such an examination is absolute, and a refusal thereof is not in the discretion of the court.
    8. The pendency of a motion to make the complaint more definite does not, of itself, prevent the plaintiff from proceeding with the examination of the defendant. Consequently its non-decision, or the non-entry of the order upon.the’ decision, can have no effect on the plaintiff’s right to proceed.
    9. A judge having granted an order for the plaintiff to show cause why his proceedings on the examination of the defendant as a witness should not be stayed until the hearing and decision of a motion to make the complaint more definite, with a temporary stay, has the power to vacate it, ex pmrte; and if he subsequently makes an order staying the examination of the defendant for ten days, unless a bill of particulars shall be sooner served, the making of such order will be regarded as an ex parte vacatur of the stay previously granted.
    (Before Jones, J., at Special Term,
    May 14, 1867.)

      The complaint alleges that a certain corporation called the Atchison and Pike’s Peak Railroad Company became indebted to one Luther 0. Challis for moneys paid, laid out and expended for said corporation, and work, labor and services rendered to it and at its request, and for and by reason thereof the said Challis became and was entitled to receive from said company, for and on account thereof, a large sum of money; and that about the same time the defendant and one Pomeroy had, or claimed to have, demands against said company. It then sets forth an agreement between said Challis and the defendant, whereby it was agreed that the defendant should and would negotiate with said company, and if possible procure a settlement and adjustment of the claims of said Challis, and of the claims of himself and said Pomeroy, and that of what should be recovered and collected by the defendant of the said company, either in money or obligations or securities, one third should belong to, and be the property of, said Challis, and should be paid over and accounted for to him. It then alleges that under said agreement the defendant collected from said company a certain sum of money, which he alleged to be one third thereof, and that said defendant likewise received from said company, under said agreement, upon the aforesaid claims and demands, 284 bonds made and issued by said company, each for $1000, with interest coupons attached, which were secured by a first mortgage on the property of the company. It then alleges that the defendant delivered to said Challis ten of these bonds, and promised to deliver seventy-eight more, making one third of the whole; but that he has neglected and omitted to deliver the said seventy-eight bonds, although requested so to do. It then alleges an accounting between the defendant and Pomeroy, as to Pomeroy’s share of the bonds and money. It then alleges an assignment by Challis to the plaintiff, and that since such assignment the plaintiff has requested the defendant to deliver said seventy-eight bonds, or to account to the plaintiff in respect thereto, and that the defendant neglects and omits so to do. It "then alleges that the'plaintiff does not know whether the defendant still has possession of said bonds, or not; and further alleges that if the defendant still has possession of the bonds, the plaintiff is apprehensive he will part with and dispose thereof.
    The prayer is in the alternative; either for damages to the amount of |100,000, or if the defendant has not parted with the bonds> then for the delivery thereof to the plaintiff, and for such damages as the plaintiff may be entitled to in the premises.
    The plaintiff served on the defendant a summons requiring him to attend at the chambers of the court, on the 11th of April, 1867, to be examined as a witness in the cause. The proceedings on this summons were adjourned until the 13th of April. On the 11th of April, 1867, the defendant served -the plaintiff with notice of a motion to-be made on the 22d of April, 1867, for an order directing the complaint to' be more definite and certain.in the following respects:
    1st. So as to state particularly the several amounts of money alleged to have been paid, laid out and expended by said Challis for said company, and for what specific purposes; and particularly what work, labor and services were rendered by said Challis for said company, and at what times, and the several amounts claimed by him from said company fiar the same, and the time when so claimed,
    2d. So as to state definitely the time when the contract between said Challis and the defendant was made.
    3d. So as to state definitely the time when the assignment to the plaintiff was made-.

      On the 12th of April the defendant obtained an order requiring the plaintiff to show, cause, on the 16th of April, why the examination of the defendant should not be postponed until after the hearing and decision of the motion to make the complaint more definite.
    | The defendant’s motion to make the complaint more definite was, after argument, denied, on the 3d day of May, 1867, and an. order, dated May 4th, 1867, was directed to be entered, but was not in fact entered until-May 7th, 1867.
    On the 3d day of May, the same justice who heard and decided the defendant’s motion to make the complaint more definite, and who also heard the motion for a stay of the defendant’s examination, made an order whereby, after reciting the service of the summons on the defendant to appear and testify, and that said examination had been adjourned pending the above mentioned motion of the defendant, and that said motion had been denied, he ordered the said examination to proceed, on a certain day, at the chambers of this court, and that the defendant then and there appear to testify, as required by said summons. On that day the defendant appeared, and without raising any objection, was sworn, and the proceedings adjourned to May 8th. At the time the defendant was so sworn, he had not the benefit of the advice of his attorney or counsel, (they both being absent from the city,) or of any lawyer who was cognizant of the proceedings had in the action.
    Prior to the 8th of May, and subsequent to the 3d of May, the defendant served on the plaintiff a notice requiring the service on him of a bill of particulars. He then obtained an ex parte order staying such examination for ten days, unless a bill of particulars should be sooner served. A motion is now made to vacate this stay.

      Mr. Davison, for the plaintiff.

      Mr. Woodruff, for the defendant.
   Jones, J.

Unless the defendant is entitled to a bill of particulars, he cannot have a stay for the purpose of having a bill served before the examination proceeds.

There seems to be some misapprehension on the subject of the right of a defendant to a bill of particulars. A defendant is not (as some suppose) entitled of course to a bill of particulars, in all cases.

Section 158 of the Code prescribes in what cases, and how, a bill of particulars may be obtained. By that section a broad distinction is drawn between one class of actions, and all other actions. In that one class of actions the defendant may demand a copy of the account; while in all other actions' a bill of particulars can only be obtained by special order of the court.

In this case no special order has been made. If then the action does not fall within the class in which the defendant may demand a bill, he is not entitled to it under his simple demand.

The class of actions in which the defendant may of course demand a bill of particulars consists of those where the cause of action alleged in the pleading is "an account against the adverse party, the items of which have not been set forth in the pleading. This is apparent from the language of the section, which is: “It shall not be necessary for a party to set forth, in a pleading, the items of an account therein alleged; but” (in case he does not set them forth, and there is no prohibition against his so doing if he sees fit) “ he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account,” that is, of the account alleged in the pleading. The section then provides: “And the "court may in all cases order a bill of particulars of the claim of either party to be furnished.”

The complaint in this case, if it can be said to allege an account against the defendant, sets forth the items thereof. The gist of the cause of action is that the defendant made a certain agreement with the plaintiff’s assignor; that he has broken that agreement by not delivering a specified number of bonds which he has received, and should, under that agreement, deliver to the plaintiff. The agreement, the receipt of the bonds by the defendant, the number of bonds which the plaintiff claims, and a particular description thereof, and the refusal of the defendant to deliver them, are all fully set forth in the complaint Being thus fully set forth, a bill of particulars cannot be demanded as of course.

Judging, however, from the notice of the motion to make the complaint more definite, I apprehend that 'what the defendant desires are the particulars of the claim of the plaintiff’s assignor against the company. With this I think he has no concern. The statement in the complaint of the existence of that claim is mere inducement leading up to the contract. It is wholly immaterial what that claim consisted of, or how it arose. The defendant made a certain specific agreement, and this agreement he must perform irrespective of the nature or particulars or amount of the claim of the plaintiff’s assignor against the company, unless he can avoid that agreement by reason of fraudulent representations made by the plaintiff’s assignor. This may be the intention of the defendant, and he may desire to obtain other particulars for the purpose of enabling him to establish one of the elements of that defense. It is not, however, the office of a bill of particulars to furnish a defendant with facts whereon to found an affirmative defense in his behalf; but simply when he is called on to pay an account, stated generally in the complaint as amounting to a certain sum, to give Mm the particular items of that account, so that he may determine as to the correctness of the account; as to what items he will admit, and as to what he will insist on the plaintiffs proving affirmatively; and also that he may know what he will have to contend with on the trial, and also that the general pleading, aided by the bill. of particulars, will, in the event of a subsequent action between the same parties, show what items were disposed of in the former action/

' In the present case, unless the defendant puts in a defense of fraud, the court on the trial would not permit the plaintiff, nor allow the defendant, to enter into proof as to the amount or nature or particulars of the claim in question; and even if the defendant pleaded fraud, the plaintiff would not be bound to go into proof as to the nature, amount or particulars of that claim, but the defendant would be obliged to prove affirmatively, on his behalf, that the plaintiff made certain representations as to the claim, and then that such representations were false; in doing which he might, perhaps, be obliged to go into the particulars of the claim.

Whether the defendant intends to put in a defense of fraud, or whether such defense can- be sustained in law or in fact, I, of course, am unable to determine ; but if he does so intend, and is by this means seeking a discovery of facts bearing on such defense, he has pursued the wrong course.

In no aspect of the case can the allegation in the complaint, of a claim by the plaintiff’s assignor against the company, be regarded as coming within the words account therein alleged,” contained in section 138. " .

By his notice • of motion to make the complaint more definite, the defendant ’desired to be informed as to the time wrhen a certain contract and an assignment were, made, and as he failed to obtain it on that motion we may presume he seeks to get it by a bill of particulars..

That motion was the proper course to pursue to obtain this information, but the judge who decided the motion determined that under the circumstances of the case he was not entitled to it. That decision cannot be interfered with here. Although he failed in acquiring the desired information by that motion, yet he cannot get it by a mere demand of a bill of particulars, because the bare statement of the time when an instrument or an agreement was made cannot be said to be items of an account, a copy of which is to be delivered on, demand.

The defendant’s counsel, however, claims that no. examination can be had until after issue joined. The case of McVickar v. Ketcham, decided at a general term of this court, (1 Abb. N. S. 452,) decides this proposition against him.

It may be that, pending the examination, the court has power so to control it as to meet the various objections urged against the propriety of allowing such examination before issue joined. But whatever may be the power of the court to control and direct the course of such examination, the right to such examination before issue joined is declared by the general term of this court, in the above cited case, to be absolute, and a refusal thereof not to be in the discretion of the court.

The only remaining point urged by the defendant is that the order of May 3d, appointing a day for proceeding with the examination of the defendant,"and requiring the defendant to appear on such day for examination, was inoperative, because it was made before the order denying the motion to make the-complaint more definite was actually entered with the clerk. .

The pendency of that motion did not of itself prevent the plaintiff from proceeding on the examination; consequently its non-decision, or the non-entry of the order upon the decision, can have no effect on'the plaintiff’s right to proceed.

But there was also an ex parte order made, requiring the plaintiff to show cause why the plaintiff’s proceeding on that examination should not be stayed until the hearing and decision of the motion to make the complaint more definite, with a temporary stay. The mere pendency of the motion for a stay did not affect the plaintiff’s right to proceed. 'If his right was affected at all, it must be by reason of the temporary stay contained in the order to show cause. How as to this: the motion to make the complaint more definite, and that for a stay of the plaintiff’s proceedings, came on to be heard together, before the judge who-granted the order to show cause why the plaintiff’s proceedings should not be stayed, with the temporary stay. He denied both motions, and" thereafter granted the order in question. He, having granted the stay, had the power to vacate it ex parte; and as he made this order with full knowledge of all the facts on which he ordered a stay, the making of the order must be regarded as an ex parte vacatur of the stay theretofore granted by him.

As there can be- no pretense that the plaintiff was guilty of any irregularity otherwise than by proceeding while under a stay, and as it has been shown -that the stay must be regarded as vacated, the defendant’s objection on this ground must fall.

The motion must be granted, with $10 costs; and if the proceedings for the examination of the defendant have not been kept alive by adjournment, he must attend at a time and place to be fixed, to be examined as a witness in the cause.


text:
    John G. Ambler, plaintiff, vs. Salmon Skinner, defendant.
    1. Where a lease contained a covenant that the lessee would not assign the lease, nor let or underlet the whole or any part of the premises, without the written consent of the lessor; and by said lease the whole of the first floor was reserved to the lessor, with a privilege or use to him for the reception of company, of the front parlor, in common with the lessee ; Meld that even if, by the proper construction of the covenant against underletting, the lessee had a right to take boarders, yet the occupation of the rooms by persons other than the lessee must be in the strict character of boarders. That if one claimed a greater right, he must claim by reason of a right of occupation in some character other than that of a boarder.
    2. The right to carry on business is not included in a mere right to lodge and be fed. The fact that one is a boarder with the lessee, in such a case, gives him no right to carry on a business; and as he can only get such right as a tenant, under a subletting which is prohibited by the lease, he has no such, right, as against the lessor.
    3. If such person, without the consent and against the wishes of the lessor, enters the parlor of the house, remains seated there, at the only window, interferes with the window curtains, and refuses to leave the room, on being requested, and occupies and persists in occupying rooms there for the purpose of carrying on his business as a dentist, claiming the right to do so on the ground that he is a boarder of the lessee, the lessor has a cause of action against him, and a remedy by injunction.
    4. A lessor is entitled to an injunction to restrain the use of premises, by the lessee, in violation of a restriction in the lease; and when such use is by a . person in possession under and claiming a right to such user through the lessee, he, as well as the lessee, may be restrained by injunction.
    (Before Jones, J., at Special Term,
    July —, 1867.)
    Motion for an injunction.
    The complaint, amongst other things, alleges that the defendant, unlawfully and without any right, daily enters into the parlor of the plaintiff, remains seated there, at the only window, and interferes with the position of the window curtains as arranged by the plaintiff, and when requested by the plaintiff to leave the curtains alone, or to leave the room, he refuses so to do, and acts in an insulting, threatening and violent manner; that the defendant thus acts without the consent and against the wishes of the plaintiff; that the defendant unlawfully, and without any right, occupies and persists in occupying rooms in the plaintiff’s house for the purpose of carrying on his business as a dentist; that the defendant so sits in the parlor and interferes with the curtains, and so persists in occupying a room for the purpose of carrying on his business, claiming a. right so to do, on the ground that he is a hoarder in said house, having engaged board therein from George S. St. John and Jane his wife, to whom the plaintiff leased said house. The complaint further alleges that the said lease to George S. St. John and wife contains a covenant that the lessee will not assign the lease, nor let or underlet the whole or any part of the premises without the written consent of the plaintiff; and that by said'lease the whole of the first floor is reserved to the plaintiff, with a privilege or use to the lessor for the reception of company, of the front parlor of the first floor, in common with the lessee. . .
    Upon this complaint an order was made requiring the defendant to show cause why, upon the plaintiff’s own statement, an injunction should not issue. Upon the return of this order the defendant objected,
    1st. That the complaint was not sufficiently verified.
    2d. That the complaint showed no cause of action, whatever.
    ■3d. That if it did show a cause of action, the remedy was not by injunction.
   Jones, J.

As to the first objection, the verification is as ample and positive as the jurat to an injunction bill was required to be in the court of chancery. (3 Hoff. Ch. Pr. 16.)

As to the second objection, it is contended that the de* fendant, being a boarder, had a right, under the lease, to do the acts complained of.

Assuming (without deciding) that by the proper construction of the covenant against underletting, the lessees have a right to take boarders, yet the occupation of the rooms by persons other than the lessees must be in the •strict character of boarders. The definition of the word boarder is, one who has food or diet and lodging in another’s family, for reward.” If then one claims a greater right, he must claim by reason of a right of occupation in some character other than that of a boarder. The right to carry on business is certainly not included in a mere right to lodge and be fed. The defendant being a boarder, then, gives him no right to carry on a business; and as he can only get such right as a tenant under a subletting which is prohibited by the lease, it follows that he has no such right, as against the plaintiff.

With respect to the sitting in the parlor, the right to use the parlor at all is confined, by the lease, to the lessees, and the only right accorded to them is that of using it for the reception of company.

The plaintiff, then, clearly has a cause of action against the defendant, arising out of the aforesaid acts done by him. But has he a remedy by injunction ? I think he has. A lessor is entitled to an injunction to restrain the use of premises by the lessees in violation of a restriction in the lease. (Steward v. Winters, 4 Sandf. Ch. 587. Howard v. Ellis, 4 Sandf. 369. Dodge v. Lambert, 2 Bosw. 570.) And when such use is by a person in possession under and claiming a right to such user, through the lessee, there can be no reason why he, as well as the lessees, should not be restrained. (Howard v. Ellis, ubi supra.)

An injunction must therefore issue, restraining the defendant from prosecuting the business of dentist on any part of the demised premises; and also restraiuing him from entering the parlor on the first floor, except only for the bare purpose of calling on and visiting the lessees, in which case his stay therein shall only be prolonged sufficiently for the purpose of such visit, and restraining him from interfering with the windows, shades, blinds, curtains or furniture of said parlor.

As this injunction is granted on the allegations of the complaint, and the defendant has only been heard on the question as to whether the allegations of the complaint are sufficient to warrant an injunction, the injunction must go without prejudice to the defendant’s right to move, on an answer or affidavits denying or avoiding the allegations of the complaint, or setting up new matters, to dissolve the injunction.


text:
    Charles A. Fairchild, plaintiff, vs. John H. Valentine et al., defendants.
    1. Where both parties seek an accounting in respect to business transacted under an agreement between them, and it is alleged and conceded that the business has entirely ceased, by reason of the failure of one of the parties to the agreement, each of such parties has a present right to an accounting, whether they are partners or not; and the principles on which the accounting is to take place will be the same, whether the agreement constituted a partnership or not.
    2. If the agreement be construed as constituting a partnership, then an action for an account can only be sustained on the ground of its necessity for the purpose of adjusting mutual accounts. Hence the plaintiff must account, as well as the defendant, so that the mutual accounts may be adjusted.
    3. Where, by the agreement between the parties, the plaintiff was to dispose of goods shipped to him by the defendants, and remit the proceeds to the latter, to be applied to the payment of drafts drawn on them by the plaintiff, the defendants relying on the goods to furnish the means of paying for them, and not on the personal responsibility of the plaintiff; Held that if the defendants were, under the agreement, only agents of the plaintiff, as to the . duties to be performed by them, the plaintiff was also their agent, as to the things to be done by him. And that this presented a strong case of mutual accounts.,
    4. And that if the agreement constituted a partnership, then the accounting must be mutual; and that the defendants were entitled to an accounting on the theory of a partnership, although they did not aver that the partnership had been dissolved, nor pray for a dissolution; nor bring into court a sum of money which it >vas alleged they had received and not applied according'to the agreement; where the partnership was one at will, determinable at any moment, at the will of either of the partners; it appearing that the business had entirely ceased; and by reason of the insolvency and assignment of the defendants it was impossible to resuscitate or continue it; and that the sum of money was not a private debt due to the firm, but money received by the defendants as partners, in course of the partnership business, and they insisted there was a balance in their favor.
    6. These facts, if they do not of themselves dissolve the partnership, furnish ample cause for a decree of dissolution.
    6. Where both parties agree that the business transacted between them is at an end, and that the subject matter of the agreement is extinguished, and they both seek an accounting, disputing only as to the principles on which it shall be taken, the court may, in settling the decree, after trial, well disregard the want of an averment that the partnership has been dissolved, even if such an averment and prayer be technically necessary.
    7. Such an adjustment of accounts between the parties may, in either aspect of the agreement, be had, in an action brought by one party thereto against another. If the agreement constitutes an agency, only, the accounting may be had under the allegations and prayer of the complaint; if it creates a partnership, then an accounting may be had under the answer and the prayer thereof, as affirmative relief.
    (Before Jones, J., at Special Term,
    July —, 1867.)
    In this case the complaint sets forth a certain agreement made between the firm of. Fairchild & Eobinson and the firm of Valentine & Go.; that no agreement was made as to any losses that might arise in the prosecution of the business; that no mention was made of any partnership between the parties, but that the agreement was made simply as a method of compensation for the services of Valentine & Co., and in lieu of any fixed commissions therefor. That in pursuance of said agreement, Fairchild & Robinson purchased goods in the city of blew York, for the price of which they drew drafts on Valentine & Co., who accepted and paid the same to the amount of $25,000 and over. That Robinson died October 28, 1865, and Fairchild continued the business, as survivor. That Fair-child & Robinson, and Fairchild as survivor, purchased large amounts of goods for the price of which they and he drew drafts on Valentine & Co. to the amount of $25,000, which drafts were accepted but not paid by Valentine & Co. That Fairchild & Robinson, and the plaintiff as survivor, under said agreement, shipped to Valentine & Co. large amounts of goods and remitted divers drafts, amounting in all to $30,000, which under said agreement were to be applied by Valentine & Co. to the payment of the drafts drawn on them. That on the 27th day of December, 1865, Valentine & Co. had in their hands, after deducting all drafts paid them, and all proper expenses, a surplus remaining out of the said goods and remittances sent to them, of about $3322.23, which surplus was applicable to the payment of debts contracted for the goods sent to Fair-child & Robinson, and Robinson as survivor, but which has not been so applied by Valentine & Co. That Valentine & Co. effected certain insurances .on goods purchased for Fairchild & Robinson, and Fairchild as survivor, the losses on which goods, if any, were under said agreement to be paid over to Fairchild & Robinson, or the plaintiff* as survivor, and to be applied to the payment of the outstanding indebtedness that might exist, growing out of the business conducted under said agreement. That some of such goods so insured were wholly lost, and others damaged by the perils insured against. That Valentine & Co. failed in December 1865, and on the 26th day of December, 1865, made a general assignment of all their property to George F. Valentine. That .such assignment was voluntary, was made for the benefit of the creditors of Valentine & Co. and was without any valuable consideration. That the plaintiff* was not a party to such assignment, and has not ratified or confirmed the same, and that the same is fraudulent and void as to him, and as to the creditors of Fairchild & Robinson, and of the plaintiff* as survivor. . That after the execution of such assignment, and in ignorance thereof, the plaintiff sent to Valentine & Co., under said agreement, a certain draft which was by them assigned to their assignee. That there are certain scrip dividends arising out of an insurance effected under said agreement. That the assignee of Valentine & Co. claims, under the assignment made to him, the six policies of insurance and losses payable thereon, the scrip dividends, the said draft, and all moneys transferred by the firm of Valentine & Co. and claims the right to apply the same to the payment of the general indebtedness of Valentine & Co. in which firm the plaintiff was never interested in any manner. That prior to the commencement of this action the plaintiff" requested said assignee to apply the above mentioned assets to the payment of the outstanding obligations arising out of the business carried on under the aforesaid agreement; which the said assignee refused to do.
    The answer of the defendants, as I construe it, denies, 1st. That the agreement set forth in the complaint was made simply as a method of compensation, or that it did not constitute, in law and in fact, a partnership. 2d. That the agreement was continued with the plaintiff as survivor. 3d. That Fairchild & Robinson, and Fairchild as survivor, purchased large amounts of goods, for the price of which they and he drew drafts on Valentine & Co. to the amount of $25,000, which drafts were accepted but not paid by Valentine & Co., or that Fairchild & Robinson, or Fairchild as survivor, shipped to Valentine & Co. large amounts of goods and remitted their drafts amounting to $30,000. 4th. All the allegations of the complaint respecting the surplus of $3322.23, and also denies that that sum, or any sum, is due the plaintiff, or to him as . survivor. 5th. That the moneys to he-received from insurances were to be paid to Fairchild & Eobinson. 6th. That any goods covered by insurance have been lost or damaged by the perils insured against. 7th. That the assignment made by Valentine & Co. is fraudulent and void as to the plaintiff or any other person.
    The defendants then allege, as affirmative matters, that the firm of Fairchild & Eobinson made large profits and earnings in said business, to all of which the defendants Valentine & Co. are entitled to one half, which half, they believe amounts to over $6000, no part of which has been paid or accounted for by the plaintiff or the firm of Fair-child & Eobinson. That the draft of Jeffry Brothers, mentioned in the complaint, was applied by Valentine & Co. to the payment of the indebtedness of the plaintiff to them, and therefore delivered to their assignee for the benefit of all their creditors.
    The plaintiff, on the allegations in the complaint, demands as relief that the said assignment be adjudged void as to' the plaintiff and the creditors of Fairchild & Eobinson, and of the plaintiff' as survivor, so far as said assignment tends to transfer any property sent to Valentine & Co. under the said agreement, or the proceeds, ■thereof; that the defendants be decreed to account with the plaintiff, of and concerning the money, property and assets, or the value of such property which they or either of them have received from said firm of Fairchild & Eobinson or the plaintiff', or which may have come into their hands, or those of either of them, from said firm or said plaintiff, or which, under said agreement would be properly applicable to the payment of the debts of Fairchild & Eobinson, and of the plaintiff as survivor; and that the defendants be adjudged to .pay over and deliver the same to the plaintiff, or to a receiver to be appointed by the court. That an injunction issue restraining the defendants from interfering with or disposing of any part of said assets or property; and that such other and further order may be made in the premises, for a distribution of the said moneys, property and proceeds among the creditors of Fairchild & Eobinson, and of the plaintiff as survivor, as to the court may seem just and proper.
    The defendants demand as relief, that an accounting be had as to the profits earned by Fairchild & Eobinson, and that one half of such profits be credited to Valentine & Co. and the balance be paid to the assignee of Valentine & Co.
    The evidence, in connection with the allegations in the pleadings, established the following facts: The firm of Fairchild & Co., doing business in Florida, and the firm of Valentine & Co., doing business in the city of Flew York, made an agreement with each other, by which goods were to be purchased at the city of Flew York and shipped to Fairchild & Co. at Florida, for sale, and Fair-child & Co. were to purchase goods at Florida and ship them to Valentine & Co. at the city of Flew York, for sale. The goods purchased by either firm were to be paid for by Fairchild & Co.’s drafts on Valentine & Co., accepted by Valentine & Co., which drafts were to be paid by Valentine & Co. The proceeds" derived from the sale of the goods, both of those sold at Florida and those sold at the city of FTew York, were to be applied by Valentine & Co. to the payment of such drafts. If net profit arose from such business of purchasing and selling, it was to be equally divided between the two firms. In ascertaining the net profits, expenses of freight, store rent, clerk hire and the like, were to be deducted from the gross proceeds. If any goods were insured, and a loss occurred, the amount received from the insurance companies was to be applied in the same manner as the proceeds of the goods, if sold, would have been.
    Neither in the .negotiation that led to the agreement, nor at the time of making the agreement, was the term or word partnership used, or any division or sharing of losses mentioned, or any thing said about the half of the net profits being a compensation for the defendant’s services in lieu of services.
    Under this agreement, the two firms commenced the business contemplated thereby, and continued the same until the failure of Valentine & Co. In the course of the prosecution of this business, a large quantity of goods were sent from New York city to Fairchild & Co., and also sundry goods were shipped by Fairchild & Co. to Valentine & Co. For the payment of the purchase money of these goods, drafts to a large amount were drawn by Fair-child & Co. on-Valentine & Co. Of the drafts some were accepted and paid, others accepted and not paid, others neither accepted nor paid. There was also an open account for the purchase money of goods sent to Fairchild & Co. for which no draft was drawn, and which remains unpaid. The drafts which were paid, were, as the plaintiff claims, paid with proceeds of goods shipped to Fairchild & Co., which proceeds were remitted to Valentine & Co. for that purpose, and with the proceeds of goods shipped to Valentine & Co. by Fairchild & Co.- And the plaintiff claims that after deducting from such proceeds the amounts of drafts paid, there remains a surplus which ought also to have been applied to the payment of other drafts, but ■which were not applied. The defendant, on the other hand, claims that the amount of such proceeds was not sufficient to cover the drafts which they did pay.
    In the course of the business, certain goods which were shipped under the agreement were insured in the name of Valentine & Co. The goods were either lost or damaged by perils covered by the policies. ÍTothing had been collected on the policies at the time of the cessation of the business.
    : At the time of the cessation of the business, Fairchild & Co. either had on hand, or had sold and failed to remit the proceeds of, a large quantity of goods shipped to them from blew York by Valentine & Co., under the agreement. For these goods, or the proceeds thereof, Fairchild & Co. refused to account.
    • Valentine & Co. failed, and made an assignment preferring certain debts due by them, other than those contracted in the above mentioned business, together with certain of the said drafts. ' The assignment also, in terms, assigns the above mentioned policies, and after the assignment a draft sent by Fairchild & Co. to Valentine & Co., under the said agreement, was delivered to the assignee.

      Mr. Hills, for the plaintiff.

      Mr. Foster, for the defendants.
   Jones, J.

The expressed terms and conditions agreed on between Valentine & Co. and Fairchild & Robinson were as above found, and the complaint, although inartificially, yet substantially, alleges them to have been the terms and conditions of the agreement, bfor does it seem to me that there is any serious conflict between the parties but that the expressed terms and conditions were as above found. But the dispute is as to the effect of these expressed terms and conditions. The plaintiff claims that by them no partnership is created, but that the defendants are merely his agents, and that they are bound to account to him, without his accounting to them. The defendants, on the other hand, claim that a partnership is constituted by them, and consequently that they are entitled to an account, and the plaintiff cannot have an account from, without accounting to, them.

For the disposition of this action, I think it unnecessary to determine whether this agreement constitutes a technical partnership, as between the parties themselves, or not. Both parties seek an accounting under the agreement. Each of them has a present right, as against the other, to an accounting, whether they are partners or not, it being alleged and conceded that the business has entirely ceased by reason of the failure of Valentine & Co.; and the principles on which the accounting müst be taken will be the same whether the agreement constitutes' a partnership or not.

The plaintiff seems to suppose that if there is no partnership, and the defendants were simply his agents, he is entitled to an account from, without rendering an account to, the defendants. This, however, is not so. . If such be the construction of the agreement, then this action can only be sustained on the ground of its necessity for the purpose of adjusting mutual accounts. (Wilson v. Mallett, 4 Sandf. 112.) It being sustainable on that ground alone, it is obvious that the plaintiff -must also account, so that the mutual accounts may be adjusted.

' But the plaintiff is in error in supposing that, in. the event of the agreement not constituting a partnership, the sole relation of the defendant Valentine & Co. to him is that of his agents owing duties to him without his owing any duty to 'them. Under the agreement, the plaintiff' was to dispose of the goods shipped to him, and remit the proceeds to the defendants, to be applied, under the agreement, to the payment of drafts. It is evident that the defendants- relied on the goods to furnish the means wherewith to pay for them, and not on the personal responsibility of the plaintiff. If, then, the defendants Valentine & Co. were, under the agreement, only agents of the plaintiff, as to the matters to be performed by them, the plaintiff was also their agent, as to the matters to be done by him. This presents a strong ease of mutual accounts.

If, however, the agreement did constitute a partnership, there is no question but that- the accounting must be mutual. But the plaintiff says the defendant is not entitled to an accounting on the theory of a partnership, because he does not aver that the partnership has been dissolved, nor pray for a dissolution, and also because he does not bring into court the sum of $3322, which it is alleged he has received and not applied according to the agreement.

As to the first objection, the partnership was one at will, determinable at any moment, -at the will of either of the partners; the business had entirely ceased; and by reason of the insolvency and assignment of Valentine & Co. it was impossible to resuscitate or continue it. These facts appear both in the complaint and answer. If they do not of themselves dissolve the partnership, they furnish ample cause for a decree of dissolution.- Both parties agree that the business is at an end, and that the subject matter of the - agreement is extinguished; they both seek an accounting, disputing only as to the principles on which it shall be taken; under such circumstances, the court may, in disposing of the cause after trial, well disregard the want of an averment that the partnership has been dissolved, or of a prayer for a decree of dissolution, even if such averment and prayer be technically necessary. -

As to the second objection, the sum in question is not a private debt due to the firm. It is money received by one of the partners in course of the partnership business, and Valentine & Co. insist there is a balance in their favor. There is, therefore, no pretense for compelling them to pay it in. (Collyer on Partnership, § 302.)

The plaintiff, however, insists that Valentine & Oo. were bound by the terms of the agreement to apply this sum to the payment of debts of the business, and that they are consequently bound so to apply it irrespective of the state of the accounts. It is not, however, at present, a question as to what they were bound to do during the running of the business, but what they are bound to do to entitle themselves to an accounting from the plaintiff. This action is between the original parties to the agreement. By the agreement, the primary fund for the payment of the debts in question was the proceeds arising from the sale of the goods. If the goods themselves, now held by the plaintiff, and the proceeds arising from the sale thereof, now actually or in contemplation of law in the plaintiff’s hands, are sufficient to pay the debts of the business, and leave a profit, one half of which would be the sum of $3222, there can be no justice in requiring the defendants, as between themselves and the plaintiff, to pay that sum into court, or apply it to the debts. It is, on the contrary, the duty of the plaintiff to apply the goods and proceeds in his hands to such payment.

Whether the agreement, then, constitutes a technical partnership or not, the accounting must be mutual. That accounting must be taken, and the assets of the business applied according to the terms of the agreement. And it is evident that the principles on 'which the account must be conducted will be the same, whether the agreement constitutes a partnership or not.

T-his adjustment of accounts may. be had in this action, in either aspect of the agreement. If it constitutes an agency only, under, the allegation and prayer of the complaint; if it be a partnership, it may be had under the answer and its prayer, as affirmative relief. (Code, §§ 149, 150, 274.)

There must he judgment declaring said assignment void as to the plaintiff and Fairchild & Robinson, and the creditors of the business carried on under said agreement, so far as it tends to transfer any property sent to Valentine & Co. under said agreement, or the proceeds thereof, and directing both the plaintiff and defendants to come to an accounting together, of and concerning said business. Such accounting to be had before John M. Mason, who is hereby appointed a referee for that purpose. A receiver must also be appointed, under the direction of said referee, to whom both plaintiff and defendants must transfer all assets now remaining' in their hands, of the said business, including the policies of insurance and Jeffry drafts mentioned in the complaint, and all moneys received thereon, and all goods now in the hands of the plaintiff, and drafts or evidences of debt taken for the payment of such as have been sold; but excluding any mere general indebtedness of either of the parties to the other for moneys received in the course of the business, and not on hand at the time of the assignment, for which indebtedness, when ascertained by the referee, the receiver to be appointed shall, in case the assets be insufficient to pay the creditors of the business in full, bring an action to recover; but if such assets be sufficient to pay such creditors in full, but insufficient to pay such indebtedness in full, the party in whose favor such indebtedness is reported shall have against the other a personal judgment for the amount unpaid.

The transfer of the assets must be under the direction of said referee, who shall for that purpose have power to summon the parties and witnesses, as shall be necessary for that purpose.

The receiver to ascertain who are the creditors of said business, and the amounts due them respectively, and out of the assets in his hands to pay such creditors the amounts due them respectively in full; or if the assets be insufficient to pay them in full, then to pay them fro rata. And if any surplus be left, then to divide such surplus equally between the plaintiff and the defendant George F. Valentine; unless the said referee shall find either said plaintiff or Valentine & Co.'to be indebted, the one to the other, on the accounting taken by him; in which case such surplus shall be first appropriated to the payment of ■ such indebtedness, and the residue only (if any) be divided equally between the plaintiff and the defendant George F. Valentine.

An injunction must also go against both plaintiff and defendants.

Both parties to have costs of this action, to be paid out of said assets in the first instance.


text:
    Gustave Schullhofer, plaintiff, vs. Max Metzger, defendant.
    1. A husband is not necessarily liable -for moneys advanced to or for the benefit of the wife.
    2. When a party claims to hold a husband liable for money advanced to or for the benefit of the wife, he should in his pleading either aver the money to have been loaned and advanced to the husband, or to the wife, or for her benefit, at the husband’s request, or with his consént; or that he subsequently acquiesced; or that she was the agent of the husband in procuring the advance; or he should allege such facts as that an implied agency from the husband to the wife may arise therefrom.
    (Before Jones, J., at Special Term,
    December, 1867.)
    Motion for leave to amend answer.
   Jones, J.

If the proposed amendment constituted a valid counter-claim, I should not hesitate to allow it. But it clearly does not. A husband is not necessarily liable for moneys advanced to or for the benefit of the wife.

When a party claims to hold a husband liable for money advanced to or for the benefit of the wife, he should in his pleading either aver the money to have been loaned and advanced to the husband, or that it was loaned and advanced to the wife or for her benefit, at the husband’s request, or with his assent; or that he subsequently acquiesced ; or that she was the agent of the husband in procuring the advances; or else he should allege such facts as that an implied agency from the husband to the wife may arise therefrom.

The proposed amendment merely alleges that the defendant is indebted to the plaintiff in a certain sum “for moneys paid, laid out and expended for the benefit of the wife of the defendant.” This is insufficient.

The present motion must1 be denied, with $5 costs; but as the defendant may be able to make an answer which will show on its face that the husband is liable for the items mentioned in the account presented, this denial is without prejudice to.a motion for leave to serve a proposed amended answer showing such liability, on condition of moving within five days after service of the order to be entered hereon, and paying said $5 within that time.


text:
    Coleman vs. Chauncey,
    1. The claim on the amount of which a per centage can be allowed, under sec. 309 of the Code, is the sum which the plaintiff states in his complaint as being the amount which he seeks to recover.
    2. If no sum is mentioned in the complaint, but the plaintiff merely ¿seeks and asks for such sum as may be found due him on an accounting, there are in that aspect no data for computing the per centage.
    3. The “ subject matter involved” within the meaning of section 309 of the Code, is that which is to he directly affected by the action.

      4. Where the “subject matter” to be directly affected by the action was an aliquot part of the profits made by the defendants out of the transaction alleged in the complaint, and the liability of the defendant to pay such proportion of the profits constituted the dispute between the parties; and the amount of such proportion was the only “ amount involved;” Held that there having been no recovery, there were no data upon which to fix that amount, so that the per centage could be calculated.
    (Before Jones, J., at Special Term,
    December, 1867.)
    Motion for an extra allowance.
   Jones, J.

The law under which .the courts are authorized to grant extra allowances, restricts the sum. that can be allowed to five per cent on either the amount of the recovery; or the amount of the claim; or the amount of the subject matter involved. (Code, § 309.)

In this case there was no recovery; therefore there is no amount of recovery on which a per centage can be granted.

The claim on the amount of which a per centage can be allowed is, as I understand it, the sum which the plaintiff states in his complaint as being the amount which he seeks to recover. In this case no sum is mentioned in the complaint. The plaintiff seeks and asks for such sum as may be found due him, on an accounting. In this aspect there is no data for computing the per centage.

Unless, then, the subject matter involved furnishes data, no allowance can be made.

This raises the question as to what the subject matter involved is. The subject matter involved is that which is to be directly affected by the action. . (The People v. Albany and Vermont Railroad Co., 16 Abb. 465.) The subject matter to be directly affected by this action is the 1.40th part of the profits made by the defendants out of the transaction alleged in the complaint, less some $6900. This is all the plaintiff seeks ,to recover, and it is to protect themselves from this alleged liability only that the defendants are called on to defend this action; and it is only to obtain such protection that they have in fact defended the action.

The liability to pay the above mentioned proportion of profits constitutes the dispute between the parties to this action, and the amount of such proportion is the only amount involved. I have been unable to find any data upon which to fix this amount. ■ c

The defendants’ ■ counsel claims that' the subject matter-involved is the share claimed by the plaintiff to belong to him; and that the amount upon which the per centage is to be computed is the value of this share. This is in fact but expressing the above idea in different.phraseology. That share would be the 1.40th part of the whole, and its value is the exact amount of the profits to which the owner of it would be entitled.

I am unable to ascertain, from the papers before me, what would be the 1.40th part' of all the profits after deducting the sum of $6900; or, in other words, what would be the value of this share to an owner standing in the same relative position thereto as this plaintiff does. The par value (if it can be so called, that is, the total amount which each subscriber was called on, under the articles of association, to pay on each share; the amount to which they were liable to be called upon not being limited by the articles) is no test; for unless the profits equalled that amount, of course the share could not be "worth it. It is different from the case of a bond or other instrument purporting on its face to be worth a certain sum. There, generally, (although, perhaps, not in all cases,) the sum so mentioned would be deemed prima facie to be the value of the right or interest represented by the instrument. Here a number of persons agree to join forces, and each advance in certain proportions sufficient sums for the purpose of carrying out a certain project, depending wholly on its ultimate success for their reimbursement and profit.

It may, however,, be said that as the plaintiff offered to pay the balance due from him on his interest, to wit, $6900, to be reinstated as a subscriber, that fact shows the value of the shares to be at least $6900. This may be so. That fact may be sufficient, as against the plaintiff, to show that a paid up interest is worth $6900. But the question is*not as to the value of other interests, which may or not be paid up, but is as to the value of the interest which is not paid up by $6900. Suppose this plaintiff wanted to sell his interest, what could he get for it. The person who purchased would have to pay to the other associates $6900, and for it would receive back the sum of $6900. Would he, under these circumstances, give any thing for this interest ? Would it not be valueless?

But it may he urged that he could not have afforded to pay this balance, unless he expected to receive back a greater sum. That may also be true. But how much is this, greater sum ? It does not appear from the evidence.

I think this motion must be denied, on the ground that there are no data from which to ascertain any amount to calculate the per centage on. Having come to this conclusion, I have not considered any of the other questions.

Motion denied, without prejudice to renew it on further papers showing the amount of the l-40th part of the net profits. And as in the above cited case of The People v. The Albany and Vermont Railroad Co., it is held that where an action is brought to obtain an injunction, the value of the property sought to be affected by the injunction will furnish the amount on which a per centage can be given, such further" papers may also show the value of the property sought to be affected by the injunction prayed for; so that the question whether it is proper to give a per centage on the amount may be raised.


text:
    Taylor vs. Jennings
    1. Where, in an action for debauching and enticing away the plaintiff’s wife, the answer alleged that the wife was compelled to leave the plaintiff’s house by reason of his cruel and inhuman treatment and immoral conduct, he having introduced a lewd woman into his house, and kept her there, for the purpose of sexual intercourse; Held that the plaintiff, being examined as a witness for the defendant, before trial, might be inquired of as to the matters set up in the answer, and compelled to answer.
    2. In such a case the plaintiff is not called as a witness, either for or against - his wife, but as a witness against himself; and the wife having no interest in the result of the litigation, any testimony which the husband may give cannot affect her, one way or the other.
    3. Neither is the plaintiff an incompetent witness, in such a case, for the reason that the effect of his testimony may be to destroy the harmony of his marital relations, and sow dissension between him and his wife, and therefore to allow him to give such testimony would be contrary to public policy.

      4. The act of1867, to enable husband and wife to be witnesses for or against each other, has no reference to cases where a husband or wife is called as a witness against himself, or herself.
    5. The fact that a witness, by giving his testimony, may thereby lay himself open to a civil suit, will not privilege him from testifying. Nor, if the testimony is material to the issue, can a witness refuse to answer, on the ground that his testimony will tend to disgrace him.
    (Before Jones, J., at Special Term,
    December, 1867.)

      Motion for an attachment for a contempt.
    The plaintiff is under examination, at the instance of the defendant, as a witness. The examination is being had before trial. The action is for debauching and enticing away the plaintiff’s wife.
    The answer, among other things, alleges that the wife was compelled to leave the husband’s house, by reason of his cruel and inhuman treatment and immoral conduct; and as a specification of the immoral conduct, it alleges that the husband introduced and kept in his house a woman whom he falsely répresented to be a relation; that this woman was a lewd woman, and was so introduced and kept in the .husband’s house for the purpose of sexual intercourse. ■
    On the examination of the plaintiff he, after having testified that he first became acquainted with this woman in Salem, Mass., was asked: “ At what place in Salem—what part of the town ?” The question was objected to because, as he was the husband of the party whom the defendant was alleged to have debauched and enticed away, he could not be examined' on the matters alleged in the answer; and secondly, because it would'be in contravention of the act of May 30, 1867, to allow him to give testimony tending to show the commission of adultery by the plaintiff, inasmuch as any such testimony would be testimony either for or against his wife. 'The objections were overruled, and the witness directed to answer, which he refused to do.
    . The present motion is for an attachment to issue against the witness to punish him for contempt.
   Jones, J.

The objections are clearly untenable. The plaintiff is not called as a witness either for or against his wife. He is called as "a witness against himself. The wife has not the slightest interest in the result of this litigation. The testimony which the husband may give cannot affect her, one way or the other.

It may, however, be urged that although the plaintiff is not incompetent as a witness, on the subject indicated by the answer, for the reason that his testimony is tobe given for or against his wife, yet he is incompetent for the reason that the effect of his testimony may be to destroy the harmony of his marital relations, and sow dissension between him and his wife, and therefore to allow him to give that testimony would be contrary to public policy. If this proposition be correct, then neither husband nor wife, when called as witnesses in an action, to which neither of them was a party, or in the event of which neither of them was interested, could be allowed to give any testimony, the tendency of which might be to impair the harmony of the marital life. I do not understand the deference paid by the law to considerations of public policy goes to this extent. Starkie (Ev. vol. 2, part 1, p. 551) says: • “ Where neither of them is either a party to the suit or interested in the general result, the husband or wife, is, it seems, competent to prove any fact, provided the evidence does not directly criminate the other, or, as it seems, involve the disclosure of some communication made by the other.”

The proposed evidence neither criminates the wife, nor does it disclose any communication.

The act of 1867 (Laws of 1867, chap. 887) has no bearing on this question. That act is a remedial one, and was passed to set at rest doubts which had been raised by some decisions, as to whether, in cases of husband and wife, where one was a party, either nominal or real, the other, not being a party, was a competent witness.

The first section of the act of 1867 sets this question at rest, by enacting that the husband or wife of any party to an action," or of any person in whose behalf the action ia .brought or defended, shall be competent and compellable to give evidence.

For the purpose of restricting this general legislation, the second and third clauses were added. The second clause provides, that nothing contained in the first clause shall render a husband or wife competent or compellable to give evidence for or against the other in the proceedings and actions therein mentioned, except as to certain specified facts. The operation of this clause, then, except as to those specified facts, is to" leave the law, as to the proceedings and actions therein mentioned, precisely the same as it was before the passage of the act.

The third clause provides thus: “¡No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.” This was the law prior to the passage of the act. The only operation of the clause is to prevent the general legislation of the first clause from interfering with this princi- . pie of the common law.

It will thus be perceived that the act has no reference to cases where a husband or wife is called as a witness’ against himself or herself. If, however, it were proposed to call the wife, who is not a party to the action, to give evidence for or against her husband, then if she were called under the provisions of the first clause, the restrictions contained in the second clause would apply.

A delicate question might have arisen whether, independently of this act, a wife might not be examined as a witness for or against her husband in all cases where the husband himself would be a competent witness; and so also whether the husband, under similar circumstances, could not be called for or against his wife. If so, then the second clause of this act would not apply. This point, however, is not up for decision. This court has, I believe, held that independently of this statute, in cases of husband and wife, where one was a party and the other not, the one not a party could not be examined for or against the one who was a party.

The examination of this subject has led me to the consideration of two grounds upon which the defendant may, perhaps, have an objection to answering:

1st. That by giving thé testimony he may thereby subject himself to a civil action in favor of his wife, for a divorce. It not unfrequently happens that a witness, in giving his testimony, lays himself open to a civil suit. But it is held that such exposure does not privilege him from testifying. (In the matter of Kip, 1 Paige, 601. Per Bronson, J., in Henry v. Bank of Salina, 1 Comst. 86.)

2d. That the testimony will tend to disgrace him. It is now the doctrine that if the testimony is material to the issue, the witness cannot refuse to answer on the ground that his testimony will tend to disgrace him. (1 Greenl. (Ev. §§ 454,456. Per Marcy, J., in Peopl v. Abbott, 19 Wend. 195. Per Gardiner, J., in Lohman v. The People, 1 Comst. 385. Per Porter, J., in Great Western Turnpike Co. v. Loomis, 32 N. Y. Rep. 137.)

The evidence proposed to be given is material to the issue. (See Saunders’ Pl. and Ev., title Crim. Con.)

The witness must answer the question, or be attached.


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

text:
    Michael Jaeger, plaintiff, and respondent, vs. John Kelly, Sheriff &c., defendant and appellant.
    A new trial will not be granted on a case on the ground of the reception of improper testimony, if it appears either that the other evidence was such, or that if the jury had found' for the party objecting to the testimony the court would have set aside the verdict on the ground that there were certain undisputed facts which imperatively called for a verdict the other way, or that the testimony could not by possibility have influenced the jury in arriving at the verdict which they rendered.
    (Before Robertson, Ch. J., and Jones and McCunn, JJ.)
    Heard June 8, 1868;
    decided December 31, 1868.
    Appeal by the defendant from a judgment entered upon the verdict of a jury.

      A. J. Vanderpoel, for the defendant, appellant.

      J. Graham, for the plaintiff, respondent.
   By the Court, Jones, J.

The assignment executed by Jaeger to Miller, under the order of this court, the testimony of Miller as to his efforts to collect the debts, the assignment by Zenick to M. Mattison & Co., and the assignment by Zenick to Austin Melvill, were all improperly received in evidence, as they were clearly irrelevant and improper testimony.

Having been received in evidence under objection duly taken by the defendant, the judgment against the defendant, must be reversed, for these errors, unless it clearly appears either that the other evidence was such as that if the jury had found for the defendant the court would have set aside the verdict on the ground that there were certain undisputed facts which, notwithstanding all the. other evidence, imperatively called for a verdict for the plaintiff; or, that the irrelevant and improper testimony could not by possibility have influenced the jury in arriv- _ ing at the verdict which they rendered.

1. The other evidence in the case is not such as tó enable the court to say that upon it alone.the jury should have found for the plaintiff.

2. It does not clearly appear that the improperly admitted evidence did not, or could not by any possibility, have affected their verdict.

The question submitted for their determination was whether the assignment was fraudulent. The defendant, to show its fraudulent character, relied on various acts of Jaeger, his small pecuniary responsibility, and his business relations, in connection with other matters, one of which was an alleged fraudulent exaggeration of the preferred debt of Zenick. 'We cannot say but that the fact, shown by the improper testimony, that Jaeger had no longer any connection with the assignment, but that Miller was properly and vigorously conducting its business, ■ may" have influenced the jury, in weighing the evidence, to pay no regard to the acts of Jaeger, his responsibility or business relations.

3STor can we say but that the fact of Zenick’s having assigned a portion of his interest under the attacked assignment to two creditors who held, some of the notes given by him for the accommodation of the alleged fraud- ' ulent assignors, threw such a phase of honesty over the entire transaction, as to induce in the minds of the jury a belief that the amount for which Zenick was preferred by the assignment was honestly stated therein.

In these cases of fraud, but slight circumstances often turn the scale; and we cannot undertake to say but that - this improperly admitted evidence turned the scale in favor of The plaintiff.

I am in favor of reversing the judgment and ordering a , new trial, with costs- to the appellant to abide the event.

McCunn, J.

I concur in the reasoning of Mr. Justice Jones, and am for reversing the judgment.

Robertson, Ch. J.

Although it may not be entirely well settled how far general unfitness to discharge the duties of his trust, on the part of a voluntary assignee, for the benefit of creditors,, may render the assignment • to him fraudulent and void, as matter of law, certain disqualifications are certainly held to do so. His irresponsibility is one, (Reed v. Emery, 8 Paige, 417; Connah v. Sedgwick, 1 Barb. 210;) but it must be known to the assignor (Browning v. Hart, 6 Barb. 91) at the time. It is true, where an excuse is offered for the selection, its sufficiency may be a question of law or of fact. (See Pearce v. Beach, 12 How. Pr. 404.) Where an assignee may be presumed to be disabled from performing his duties by residing at a distance, loss of his eyesight, illiteracy, (Cram v. Mitchell, 1 Sandf. Ch. 251,) or even by an incurable disease, (Currie v. Hart, 2 id. 353,) the same rule is applicable. It extends even to those cases where, from the relations between the parties, an intent might be im- ' plied that the assignor should virtually retain the control of the property assigned, when accompanied or even followed by acts of control on his part. (Litchfield v. Pelton, 6 Barb. 187.) Fictitious assets or debts in an assignment seem, however, to be mere indicia of fraud, (Mead v. Phillips, 1 Sandf. Ch. 83,) and not conclusive.

The evidence in this case did not, perhaps, go far enough to establish the absolute insolvency, or unfitness of the plaintiff as assignee, so much as his indifference to his duties, or even that the debt of Q. Sauer was wholly fictitious. Part of the debt set down as due to Zenick it sustained, although not the whole; and no excuse was shown for the exaggeration of it, beyond the amount proved. He was not called as a witness, nor was the plaintiff examined as to it. It is not, perhaps, clearly settled on whom the burden of proof of the existence of the debt in such cases restsalthough it would seem more properly to rest on the party claiming under the assignment, as it is an affirmative of the issue. If not, slight circumstances ought to be sufficient to establish, prima facie, the negative. The nature of the indebtedness and failure to prove the existence of any more outstanding accommodation notes of Zenick, ought, perhaps, to have been sufficient to cast the burden on the plaintiff of giving, at least, some evidence of a debt, or excuse for the exaggeration, yet neither he nor Zenick was asked on the subject. On the whole, perhaps the evidence should have been, as it was, submitted to the jury upon the question of fact, with proper instructions as to the law.

But some extraordinary anomalies appear in the case to have occurred on the trial of the cause. The plaintiff was sworn in his own behalf as a witness, yet his counsel claims to have obtained a verdict for him by inducing the. . jury to believe that he was in reality trying to defeat the action-, had forsworn himself for the purpose, and was in in reality assisting the defendant. It sounds somewhat strangely for a plaintiff to recover in an action where his testimony is necessary to enable him to recover, because he was not to be believed under oath. The fact that he had executed an assignment to Miller does not alter the case; the latter should, as he could, have made himself plaintiff, notwithstanding the objection of the present plaintiff* (Code, § 121,) by a supplemental complaint, and thus have got rid of the incumbrance of the original assignee appearing as the only plaintiff* on the record. If the false swearing of the plaintiff* against the good faith of the assignment would enable him to get a verdict in his favor, it would be as logical to suppose that he swore falsely in order to accomplish that very end as much as any other. The rule might have been different when an assignee could not sue in his own name. Any antago-1 nism of interest between the plaintiff and his eestuis que trust could only be settled in an' action in which both parties had an opportunity of meeting that issue, such as this would have been if the new assignee had been plaintiff. There does not seem to have been any fact, of which the plaintiff was an indispensable witness, rendering it inevitably necessary to call him on his own behalf. The plaintiff’s counsel (supposing their interest to be separate) sanctioned his credibility, therefore, by calling him, and should not be allowed to assail it, where his evidence was favorable to the defendant.

But the plaintiff’s counsel also introduced evidence against an objection on the part of the defendant, showing that the plaintiff was a wholly unfit person to act as trustee and that he had been removed as such by a judgment of the court, and executed an assignment to a third person, (Mr. Miller.) The counsel for the defendant claims that. this should not have been allowed, because it might have prejudiced the jury, by showing that the objectionable party had been removed, and that thus no harm had ensued from making him assignee. Nothing is better settled than that acts- of the parties subsequent to the assignment are not admissible as evidence to sustain its good faith. For aught that appeared in evidence, the creditors who were interested to sustain the assignment might have got up the action for the removal of the plaintiff, with a view of creating thereby evidence of good faith. It clearly was not relevant on any issue in the action, and the defendant had a right to insist on its exclusion. Had a supplemental complaint been filed by Miller, the assignment might have been admissible to prove his title; but the defendant would then have been entitled to have had the jury warned against receiving it as any. evidence of good,faith. In the present action it was wholly irrelevant and should have been excluded.

The court also allowed assignments by the preferred creditor, (Zenick,) whose debt was attacked, of his interest under the assignment to the plaintiff, to the creditors of the assignors, who held his notes made for their accommodation, to Be read in evidence against the objection of the defendant, (as is stated in the case,) “ as proof that an assignment was made to pay the note in question.” Whether by this was meant the assignment to the plaintiff', or that to the creditors of the assignors, is perhaps somewhat ambiguous, but it may be assumed to be the former. I do not see how it could legally tend to - show that the debt preferred by the assignment in controversy, as due to ZeniaTe, could be established thereby to be one of those due to the persons to whom he transferred- it, by such assignments. But they were inadmissible for that purpose, because they were executed after the assignment, and may have been so for the very purpose of being used as evidence. I think they were improperly admitted.

I think also the question put to the new assignee, (Miller,) “ whether he" had made any effort to collect the debts,” was improperly admitted, as it had no bearing on any issue in the action, and- was subsequent to the assignment.

Although the evidence thus admitted may have had no influence on .the result of the trial, and the necessity of upholding the exceptions to its admission is to be regretted, •there is no escape from the consequences of it. The defendant is- entitled to the benefit of them, and there must therefore be a new trial, with costs to abide the event."