text:
    Ellis Potter, Administrator, &c., Plaintiff and Respondent, v. John C. White, Defendant and Appellant.
    1. Where two adjoining dwelling houses are supported by a wall standing partly on the soil of each owner, which was erected as ar party wall, and has been used as such over twenty years, and one of such owners without the consent of the other removes it while in a sound condition and suitable and sufficient for the purpose for which it was erected, and erects a store on his lot and a new party wall, he is liable to the owner of the adjoining lot for any loss of rent caused, and the expense of all repairs made necessary by the removal of the old and the erection of the new party wall.

    (Before Hoffman, Pierrepont and Robertson, J. J.)
    Heard, June 5th;
    decided, June 16th, 1860.
    Appeal from a judgment entered in favor of the plaintiff on the report of a Referee.
    The action was to recover damages for an alleged illegal removal of a party wall, of the buildings Nos. 143 and 145 Chambers street, of which the plaintiff as administrator de bonis' non of Ellis Potter, deceased, held the former under a lease, and the defendant owned the latter. The cause being put at issue, it was referred to Charles P. Kirkland, Esq., to hear and determine all the issues.
    He found the facts as follows:
    1st. That in the month of May, 1854, the plaintiff was the owner of lot Ho. 143 Chambers street, in the city of Hew York, and the building thereon, and the defendant was the owner of the adjoining lot, Ho. 145, and the building thereon.
    2d. That these buildings were dwelling houses, and that the wall between them, standing partly on each lot, was a party wall, and had been used and occupied as such by the said parties and their predecessors, for upwards of forty years.
    3d. That the said party wall was, in said month of May, in a good and sound condition, and fully sufficient for the purposes for which it was erected, and for which it had been used up to that time.
    4th. The said building of the plaintiff was in good repair and condition in the said month of May.
    5th. That the said building of the defendant was then in a ruinous condition, and had been so since the taking down of the party wall on the westerly side of the defendant’s lot, which wall was taken down by the owner of the lot on the westerly side of the defendant’s one year previously, and the defendant had not repaired his building since the taking down of said party wall on his west side.
    6th. That, by the progress of business and improvement in the city of Hew York, that part of Chambers street where these buildings were situated had then become a desirable location for the purposes of business, and that the said lot of the defendant could be used more advantageously and profitably for the purposes of business, than for a dwelling house; that in said month of May the defendant, for the purpose of erecting a large and valuable store on his said lot, took down and removed the said party wall.
    7th. That said party wall was so taken down, and removed by the defendant, without any license, consent, or permission of the plaintiff.

      8th. That in the month of February preceding, the defendant gave the plaintiff verbal notice of his intention to take down said wall; and, on the 26th of April preceding, gave him a written notice to the same effect.
    9th. That the said party wall, after removal of defendant’s building, and in the manner in which he was proceeding to erect his new building, would not have stood without being supported ; and the plaintiff took no steps towards supporting the same.
    10th. That the defendant proceeded to erect a store on his said lot, with a sub-cellar, and laying the foundation sixteen or eighteen feet below the surface, and rebuilt said party wall of the thickness of sixteen inches; ten inches of the same being on his Own lot, and the remaining six inches on the plaintiff’s lot, the original wall having been twelve inches thick, being six inches on the lot of each party.
    11th. That, in taking down and rebuilding said party wall, the defendant did no more damage to plaintiff’s building than would ordinarily arise from such an act.
    12th. That in taking down and rebuilding said wall, the defendant injured the plaintiff’s building, and rendered it necessary to make repairs thereon, and rendered the same untenantable for one year, and caused the plaintiff the loss of the use and rent thereof for one year.
    13th. That the portion of the party wall standing on the defendant’s lot being removed, the party wall would not have stood; and that the party wall standing upon the premises, when the defendant took down his building, would not have been of sufficient strength for the support of the new building erected by the defendant on his lot.
    14th. That the expense of the repairs thus rendered necessary to the plaintiff’s building was $888.90, and that the plaintiff’s loss of rent amounted to $1,300.
    Conclusions of Law.
    1st. That the defendant had not the right, without the consent of the plaintiff, to take down or remove the party wall above mentioned.

      2d. That the defendant is liable to the plaintiff for the damages sustained by him, in consequence of such taking down .and removal.
    3d. That these damages are the expenses of repairs and loss of rent above stated, and that the plaintiff is entitled to recover those sums, with interest thereon, from the 1st of May, 1855.
    Exceptions were duly taken sufficient to raise all the points taken by the defendant.
    Judgment having been duly entered, the present appeal was taken therefrom.

      W. Hutchins, for the appellant.

      A. P. Man, for the respondent.

       This case was affirmed by the Court of Appeals, at its June Term, 1861.

   By the Court—Hoffman, J.

We are satisfied upon the evidence, with the conclusions of the Referee as to the character of the party wall, its sound condition and sufficiency for the purposes for which it was erected, and had been used; as also in regard to the ruinous condition of the defendant’s building, and the inducements leading him to erect a new and profitable store upon his ground. The building of the plaintiff was also in good repair.

The evidence is not enough to overrule the conclusion of the Referee, that the party wall was not removed with the license or consent of the plaintiff.

Then upon such a state of facts the case of Eno v. Delvecchio, (4 Duer, 53; 6 id., 17,) is decisive. The plaintiff was entitled to be indemnified to the full extent of the injury he had sustained. Here was a party wall, built partially on the ground of each owner, used as such for more than twenty years, and in a sound and serviceable condition. Neither party could remove it, or so deal with it as to render it an insufficient support for the building of the other, without his consent.

The remaining question is as to the amount of the damage. The amount allowed for the repairs is fully warranted by the evidence. And upon the whole, we do not see sufficient reason to change the conclusion of the Referee as to the loss of a year’s rent.

The judgment must be affirmed, with costs.

Affirmed accordingly.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    Joshua Atkins et al., Plaintiffs and Appellants, v. Thos. N. Stanton et al., Defendants and Respondents.
    1. Where one part owner of a ship furnishes supplies for it, he does not thereby acquire a lien upon it, which can be enforced by proceedings under 2 Revised Statutes, 493, section 1.
    2. If in such a case an attachment be issued, and other part owners execute a bond with sureties, as prescribed by that statute, and thereupon procure the ship to be discharged, no action will lie on the bond at the suit of the part owner who attached.
    (Before Hoffman, Pierrepont and Robertson, J. J.)
    Heard, June 14th;
    decided, June 16th, 1860.
    Appeal by the plaintiffs from a judgment against them entered on the report of J. W. C. Leveridge, Esq., as Referee.
    The plaintiffs are Joshua Atkins, Joshua Atkins, Jr., and Edwin Atkins, composing the firm of J. Atkins & Company. They bring this suit against Thomas N. Stanton and John Thomson as principals, and George S. Roe and William B. Scranton as sureties in a bond, executed to procure the discharge of a warrant of attachment that had been issued under 2 Revised Statutes, 493, section 1, on the application of the plaintiffs’ against the ship Liberty, her tackle, apparel and furniture, to satisfy a claim of the plaintiffs alleged to be a lien thereon, for materials furnished prior to December 23, 1857, for repairing, fitting, furnishing and equipping said ship, by order of her master, Benjamin Atkins, and the defendants, Stanton and Thomson, who were the ship’s agents.
    The Referee found, (inter alia) “ that at the time the said supplies were ordered and at the time the same were furnished, the plaintiffs were part owners of the said ship Liberty, and that the defendants, Thomas N. Stanton and John Thomson, together with Chester Hillard, Rouse Babcock, Benjamin Atkins, William H. Webb, and the estate of Elliot Higgins, were also, at the time said supplies were ordered and delivered, also part owners of said ship; and also that the said ship was sailed for the joint account and benefit of all the owners.”
    The Referee held, “ as matter of law, that in furnishing the said supplies to the said ship or vessel, in which the plaintiffs and defendants, and others not included in this action, were interested, the plaintiffs acquired no lien, and they cannot recover against these defendants in this action, for such supplies as are stated in said complaint.
    “ That this action being on a bond given to discharge such ship or vessel from an attachment issued under such a lien, this action cannot lie, no lien having existed against said ship or vessel which these plaintiffs could enforce as against these defendants.”
    The Referee dismissed the complaint, and from the judgment entered on his report the plaintiffs appealed to the General Term.

      E. C. Benedict, for appellants.
    This is an action on a bond given to discharge a vessel attached under the State lien law. (2 R. S., 493, § 1.) The whole proceeding is a special one under the Act, and is to be governed by the Act. The Act alone creates the lien, and by the Act alone can we determine whether in any particular case there be a lien.
    The statute provides that, whenever a debt, amounting to $50 or upwards, shall be contracted by the master, owner, agent or consignee of any ship or vessel, on account of any work done or materials or articles furnished towards the repairing, fitting, furnishing or equipping such vessel, or for provisions and stores furnished, “ such debt shall be a lien upon such ship or vessel, her tackle, apparel and furniture.” (2 R. S., p. 493, § 1.)
    The master and agent contracted a debt with the plaintiffs for the specified purposes: this is conceded; but the plaintiffs were, at the time, part owners of the ship, and the question is, whether that fact defeats the statute.
    I. There is no such exception in the statute. The statute is clear, positive, and without exception. If the statute had added, ?“ and this Act shall apply to cases where work or materials or provisions and stores are furnished by one of the part owners of the ship,” there certainly could have been no doubt; but it says so, just as effectually, by saying, “ whenever a debt,” with any possible person, and under any possible circumstances,. no matter with whom, without any exception, “ shall be contracted.”
    II. Part owners of ships are not partners: they are only tenants in common.

      “ There is a material difference between the two cases. Partners are, at law, joint tenants of their merchandise,” but part owners are tenants in common of a ship. (Abb. on Shipp., 111.)
    They may buy supplies of each other, and in such case it is, surely, a debt contracted; and if it be a debt contracted for the purposes of the statute, then it is a lien upon the ship by the statute.
    III. There is nothing in the suggestion that the plaintiffs, being part owners, furnished the articles to themselves, with others, and must thereupon sue themselves with the others, which cannot be done. The old common-law rule, that a man could not sue himself, nor sell goods to himself, was one of pure technicality, which did not deprive the party of his right, but drove him to a court of equity, where the action always lies in its true nature.
    This objection falls to the ground: first, because the distinction between courts of equity and law is abolished, and the rule of parties is now everywhere what it was in equity; and, second, because the Act gives a new cause of action, a.bond, and new parties—the obligors.

      C. Donohue, for respondents.
    1. In the sailing of a vessel where she is sailed for the joint benefit of all the joint owners are partners in that undertaking, and their rights are to be determined by their rights as partners. (Abbott on Shipping, 111, 113; Story on Partnership, §§ 56, 54.)
    II. Such being the case, each partner is liable for each article furnished to the full value, he having only a right to call on his partner for contribution. (Abbott on Ship., 111, 113; Merritt & Trask ads. Wood, 2 Bosw., 368; Story on Part., §§ 448-453, &c., shows this right.)
    III. In this case it follows that Atkins & Company themselves furnished to themselves these articles; the person purchasing was their own agent, and he bound them for the purchase-money to the whole amount. (Story, §§ 219-222, &c.)
    IV. Part owners, even a ship’s husband have no lien for supplies or advances, where in Admiralty, if a stranger he would have. How, if where a lien is given by law in a case generally, a partner is deprived of its benefits, clearly the statute makes no stronger right.
    V. A person can have no lien on his own property; it is merged in his own title. (Ladd v. Billings, 15 Mass., 15; McArthur v. Porter, 1 Ham., 19; 1 Dal., 349 ; Roberts ads. Jackson, 1 Wend., 478.) As long as it remains in use with the partnership, he is furnishing himself, he cannot have a lien on part and not on part. Where seamen’s wages are paid by an owner, they are not a lien. (2 Mason, 58; Merrill v. Bartlett, 6 Pick., 46; Gilp., 457.) Thus it is a principle in trover, if a man claims the goods, when demanded, as his own, he cannot afterwards allege a lien, the title he claimed merging all else.
    VI. It is perfectly apparent that it would be unjust to enable Atkins & Company to get their debts, and then call on them to repay their share of other expenses paid by the other owners.
    VII. Plaintiffs claim the old Court of Chancery would have given the same lien; their action here is wrong.
    1. They do not count on such a right in their complaint.
    2. The Court of Chancery never made the balance on accounts found due to one partner a lien on the individual property of another.
    VIII. What these partners did in effect, was to have the use of this chattel for that voyage, and in the use, they mutually agreed to furnish the funds to pay expenses with, and they, individually, and not their property, are the debtors.
    IX. Ho debt was or is due for this; for when Atkins & Company furnished it, they furnished to their own undertaking, and if any debt was contracted it was theirs, they being both debtor and creditor, the debt paid itself, and no remedy remained but the taking and settling of the account on equitable terms. (Grant v. Poillon, 20 How. U. S. R., 162.)
    This, as the plaintiffs’ counsel argue, is an action on a bond, not one for an account.
    The Court of Chancery, and no other Court ever treated an open partnership account as a debt.
    X. The claim is specifically under the statute. How, is it under that a lien ?
    § 1. Whenever a debt amounting to $50 is due.

      Is a debt due here ? From whom, to whom ? From Atkins & Company to Atkins & Company, if at all. Mot certainly from the property of the parties.
    § 3. Any person having a debt due to him * * * Had these parties any debt due to them ? Certainly not, until accounts were adjusted.
    § 12. The owners may apply to discharge. Can one owner seize and the other apply to discharge ?
    § 16. It must be a subsisting lien.
    § 17. This section shows the proceeding to be one at law, not in equity.
    § 24. Shows that it contemplated the lien creditor on one side, and the owner on the other.
    § 25. Also shows that the claim is to be paid, unless the owners contest.
    The judgment should be affirmed.
   By the Court—Hoffman, J.

The appeal is from a judgment entered on the decision of a Eeferee, dismissing the complaint with costs.

The action is against Stanton and Thomson, as principals, and Roe and Scranton, as sureties, on a bond given to obtain the discharge of an attachment of a vessel, under the statute “ for the collection of demands against ships and vessels. (2 R. S., p. 493.)

The plaintiffs furnished supplies to the vessel, on the order of the master. The plaintiffs and the defendants, Stanton and Thomson, were owners (with some others) of the vessel. The plaintiffs obtained an attachment, upon the usual affidavit of a debt contracted by the master and Stanton and Thomson, describing them as agents of the vessel. The vessel was attached by the Sheriff. The defendants, Stanton and Thomson, applied to have her discharged, and, having given the bond sued upon, procured such discharge.

The case resolves itself into this: Can one part owner make a particular advance for the use of the concern, sue the other part owners, attach the property, or go to judgment and execution, and take to himself part of the joint property ?—all this without the slightest reference to the position of each in general account with the others.

We consider such a proposition to be clearly untenable.

The case of Wood v. Merritt, (2 Bosw., 368,) does not afford any support to the present claim. That case merely decides, that, where a judgment has been recovered against only two part owners of a vessel owned by them and others, for repairs done to it by a third person, and one of the two so sued pays the whole judgment, he may, in an action against his co-defendant, recover such part of the amount as it is the duty of the latter to pay, without making the other part owners parties to the action.

The judgment must be affirmed, with costs.

Affirmed accordingly.


text:
    John H. Mortimer, Plaintiff, v. William, Samuel and John J. Brunner, Defendants.
    1. “ Where the owner of a store rents all of it above the first story and basement, without any covenant in the lease, except the usual one for quiet enjoyment, and subsequently leases the first story and basement for a business commonly prosecuted in that part of buildings used as stores, he does not thereby impair his claim against the first lessee for the stipulated rent, although his business may be indirectly prejudiced by the business of the second lessee.
    2. Where there is no eviction of a lessee, nor any actual interference with his enjoyment of the demised premises, and he continues to enjoy the whole premises, he cannot be excused from the payment of rent, merely on the ground that other parts of a building containing the demised premises, are so used by a lessee thereof, as to affect indirectly and injuriously the business prosecuted in the demised premises.
    3. Any interference by the second lessee, in the enjoyment by the first lessee of the premises demised to the latter, to which the lessor is not a party, will not subject the lessor to an action by the first lessee, nor impair the lessor’s right to recover the whole rent agreed to be paid by the first lessee.
    (Before Hoffman and Robertson, J. J.)
    Heard, June 15th;
    decided, June 16th, 1860.
    This action comes before the Court on questions of law arising at the trial upon exceptions, there taken by the defendants, to refusals of the Court to charge as requested, and also to the charge made.

      The suit was tried before Bosworth, Ch. J., and a jury, on the 13th of March, 1860. It is brought to recover $1,500, being one-quarter’s rent, falling due August 1, 1858, for the 2d, 3d, 4th, and 5th lofts or stories of the store Ho. 231 Broadway, which the plaintiff by an indenture of lease had demised to the defendants for a term of years then unexpired.
    The answer of the defendants avers, in substance, that, in June, 1858, the plaintiff rented the first story and basement of said premises to a Mr. Tivy for a restaurant, and suffered pipes to be erected upon said building to carry off the heat, smoke, &c., and permitted cooking to be carried on therein, &c., which was a nuisance to the defendants, and also deprived them of the use of the Croton water, and the water-closets connected with the deised premises, whereby, before the said rent fell due, they had sustained damages to the amount of $1,500.
    These facts are pleaded both as a bar to the recovery of rent as amounting to an eviction, and also as entitling the defendants to damages, by way of recoupment.
    The lease from the plaintiff to the defendants, demised to them “ all the second, third, fourth and fifth stories or lofts, being four floors from the top, and the hall entrance thereto, of the building known as number 231 Broadway, in the city of Hew York.” The lease did not specify any use for which the demised premises were leased; and it contained no covenant on the part of the lessor, except one in the usual form, for quiet enjoyment. The lease to Tivy of the first floor and basement, did not in terms grant to him any right in conflict with any provision in the lease to the defendants, and the restaurant business of Tivy was not alleged to be different, or to be conducted differently from that of other restaurant establishments, in Broadway.
    The testimony is sufficiently stated in the opinion of the Court.
    At the close of the testimony, the defendants’ counsel requested the Judge to charge:
    • 1st. That if the jury believe that the plaintiff rented the first floor and basement for the purpose of an eating and drinking place, and that such business is carried on by the knowledge and permission of the plaintiff, and that such business was injurious to the business or stock of, or the occupancy of that portion of the premises hired by defendants, it amounts in law to an interference with the beneficial enjoyment of those premises, and the plaintiff cannot recover.
    2d. That if the jury believe that the defendants have been injured by a depreciation of their stock of goods by the use of the premises occupied by Tivy, they are entitled to an offset against the plaintiff to the amount of such damage.
    3d. If the light or water which defendants were entitled to, and were in the enjoyment of, when plaintiff allowed Tivy to enter the first story, have been obstructed or interfered with by an act of Tivy, with the knowledge or permission of plaintiff, the plaintiff cannot recover.
    The Judge refused to charge either of said propositions; to each of which refusals the defendants’ counsel then and there excepted separately.
    The Court then charged the jury as follows:
    The plaintiff had a right to let the first floor and basement of the premises 231 Broadway, to be used for a restaurant and eating and drinking-house, such as the evidence shows the one in question to have been, after he had leased the remainder of the building to the defendants, and without their consent, and he is not liable to respond to them for any damages that they may have sustained thereby, nor for any injury thereby caused to the premises leased to them, nor for the loss in the use or enjoyment of said premises, thereby caused to the defendants; neither can the same be considered an eviction or in any manner defeat the plaintiff’s claim for rent.
    (To all of which propositions, the defendants duly and separately excepted.)
    But there is testimony tending to show that the plaintiff consented to the erection of the two pipes near the windows of the premises leased to the defendants after making the lease to them, and in the absence of rebutting or conflicting testimony, you prnust assume as an established fact that the plaintiff did consent to the erection of said pipes, and the defendants are entitled to a deduction from the rent, of the amount of damages that they have showed that they have thereby sustained.
    (To which ruling, the counsel for the plaintiff did then and there except.)

      The defendants have given evidence tending to show that their light was obstructed and their store darkened to some extent by those pipes, and that they were, by reason thereof, compelled to burn gas in the daytime in the back part of their store, to their damage, but have not proved any definite amount of damages sustained by them from that cause. Only nominal damages, therefore, can be allowed to the defendants.
    (To which last proposition, the defendants duly excepted.) Keither does the obstruction of the light by the plaintiff amount to an eviction, nor defeat the plaintiff’s right to recover rent from the defendants.
    (To all of which propositions, the defendants separately duly excepted.)
    You must, therefore, find that the plaintiff is entitled to recover the full amount of the rent and interest for the quarter for which this action is brought, to wit, the sum of $1,500, and interest thereon from the first day of August, 1858, less the sum of six cents for nominal damages sustained by the defendants by reason of the obstruction of their light.
    (To all of which, the defendants duly excepted.)
    Counsel for defendants then requested the Judge to charge the jury in reference to the loss of the Croton water, and that the same amounted to an eviction in case such loss arose from the acts of the plaintiff.
    To which the Court responded that there was no evidence that the plaintiff had interfered with their use of the Croton water, or had authorized any interference with it, and that it was not an element in this case, and declined to comply with such request.
    Whereupon the counsel for defendants excepted.
    Whereupon the jury, by the direction of the Court, found a verdict in favor of the plaintiff against the defendants for the sum of $1,670tVo, being the amount of the plaintiff’s claim less six cents damages allowed the defendants.
    (To all of which, the defendants excepted.)
    The Court then ordered the question of law arising at the trial to be heard in the first instance at the General Term, and the entry of judgment in the meantime to be suspended.

      S. Sanxay, for defendants.
    I. The Justice erred in his refusal to charge as requested; and, in fact, in each of the instances where defendants excepted.
    II. The Croton water was part of the demise for which the defendants were specifically required to make payment by the lease; and the loss of it amounted to an eviction. And an eviction of part of demised premises suspends the rent for the whole. (Christopher v. Austin, 1 Kern., 216.)
    III. The enjoyment of light, air, and quiet, as well as the premises in the condition in which they were when demised, were embraced in plaintiff’s covenant for quiet enjoyment; and any interference therewith by plaintiffs, or by their acts, was a breach of this covenant, and amounted to an eviction. It was not necessary that there should be a physical ouster. (Cohen v Dupont, 1 Sandf., 260; Whitbeck v. Cook, 15 J. R., 483.)
    And that there was such an interference is beyond dispute.
    IV. Damages were recoverable by defendatits by way of recoupment, for breach of the covenant of quiet enjoyment, even though for a mere easement pertaining to the demised premises. (Blair v. Claxton, 18 N. Y. R., 529.)
    The Croton water and water-closets were at least easements, if not parts of the demised premises themselves; and the plaintiff was bound to maintain them as they were demised, and not permit them to be destroyed, or rendered useless. (2 Hilliard’s Abr., 1.)
    V. The allowing to be used, or using by plaintiff, of the other part of the building, for purposes injurious to defendants, and their business, their comfort, or their enjoyment of the demise, was, per se, the erecting and creating of a nuisance.
    As to definition of nuisance, see Richardson’s Dictionary, “ Noy" (Bl. Com., book 4, ch. 13; Cowie v. Goodwin, 9 Carr. & Payne, 378; Jackson v. Eddy, 12 Miss., 209; Dyett v. Pendleton, 8 Cow., 727; Lewis v. Payn, 4 Wend., 423; Zule v. Zule, 24 id., 76; Westlake v. De Graw, 25 id., 669.)
    VI. If there was any doubt or question in respect to the acts of the plaintiff, or that they interfered with, or disturbed the defendants in their enjoyment of their demise, the Court should have submitted that question to the jury

      VII. If there were no dispute as to those questions, and by the evidence there seems to be none, the Court should have held: that they amounted to an eviction, and that the rent was wholly suspended within the case in 1 Kernan, 216; and as this case now comes before this General Term upon this question, it should now be decided that the defendants are entitled to judgment .upon it.

      E. W. Stoughton, for plaintiff
    I. The defendants have remained in the actual possession of the premises ever since the execution of said lease, and cannot, therefore, set up an eviction; by reason whereof the matters stated in their answer are immaterial, and, if true, would afford no defense in this action by way of counterclaim or otherwise. (Edgerton v. Page, 14 How. Pr. R., 116; affirmed by Court of Appeals; Cram, v. Dresser, 2 Sandf. S. C. R., 120; 12 Miss., 209.)
    II. The lease was executed under seal, and, therefore, as well as for other reasons, if the defendants had, for the cause stated, abandoned the premises, rent would still be recoverable upon the covenant to pay the same. (Gilhooley v. Washington, 4 Comst., 217.)
    III. The Court was right in refusing to instruct the jury as requested, and the charge instead of being open to exception by the defendants, assumed in their favor facts as to the obstruction of light by the plaintiff, not established by the evidence. Such obstruction, however, even if caused by him, did not amount to an eviction, or constitute even a breach of the covenant for quiet enjoyment. (Palmer v. Wetmore, 2 Sandf., 316.)
   By the Court—Hoffman, J.

The proposition mainly insisted on, in the defendants’ points is, that the tenant under a lease may remain in possession of the whole premises, and by showing a disturbance of, or injury to, the beneficial enjoyment, defeat an action for the rent; and this upon the ground that it is an eviction.

The propositions that there can be retention of demised premises, and an eviction, are logically and legally contradictory. The position has not the slightest warrant in law, principle, sense or decisions.

There are cases in which it has been deemed that there was an (eviction without a forcible ouster. But in such cases the tenant abandoned and the Court held, that acts of the landlord were so illegal and monstrous, as to be equivalent to absolute physical ouster.

Edgerton v. Page, (14 How., 116,) in the Common Pleas, has been affirmed in the Court of Appeals. (10 Abb. R., 119; 20 N. Y. R., 281.) It is distinctly and unanimously held, that there may be such acts of a landlord accompanied with abandonment by the tenant, as will amount to a virtual expulsion, and equally bar the recovery of rent.

In ease of an eviction from a portion of the premises, the law does not apportion the rent in favor of the wrongdoer. But the recovery of rent is not barred when the wrongful act stops short of depriving the tenant of the possession of any part of the premises. While the tenant remains in possession of the entire premises demised, his obligation to pay rent continues.

The charge of the Judge, by which he permitted damages to be allowed for the obstruction of the lights, in consequence of the erection of pipes near, but outside of the windows of the premises, is perhaps more liable to an objection from the plaintiff, than from the defendants. One of the defendants himself swears “ that if a restaurant is to be kept below, it was better for him to have the pipes there: the pipes were the only interference with the light.” Thus, if the letting for a restaurant was not an eviction, or a ground for a claim of damages, (as clearly it was not,) the putting up the pipes was a benefit.

In regard to the Croton water, it is apparent that the mere fact of letting the rest of the building for a restaurant did not involve the obstruction of the water by the plaintiff. And there is no evidence whatever of Ms personal interference with, or doing or assenting to any act which impaired the use of it.

The case is free from the slightest doubt.

Judgment must be entered for the plaintiff, with costs.

Judgment accordingly.


author: By the Court—Moncrief, J.

text:
    John H. Ehle, Plaintiff and Appellant, v. Peter Haller, Defendant and Respondent.
    1. On an appeal from an order sustaining a demurrer to the complaint, the objection that the order does not conform, in its terms, to the decision actually made, cannot be considered.
    2. ÍTor can the objection that the demurrer is not signed by the party, nor by any attorney as attorney, be regarded.
    3. A complaint, stating breaches of a defendant’s written contract to sell and convey real estate to the plaintiff, and an assault and battery subsequently committed on the plaintiff in forcibly taking said contract from his possession, is bad on demurrer. It unites several causes of action that cannot be included in one suit.
    (Before Bosworth, Ch. J., Hoffman, Woodruff, Pierrepont, and Moncrief, J. J.)
    Heard, December —, 1859;
    decided, January 7th, 1860.
    Appeal from an order made November 17, 1859, by Mr. Justice Pierrepont, sustaining a demurrer to the complaint, with leave to amend the complaint in twenty days, on payment of costs.

      The complaint states, that on the 28th day of January, 1859, the defendant executed and delivered to the plaintiff a contract or articles of agreement, which bore date the 26th day of January, 1859, and was duly sealed and signed by the defendant as party of the first part thereto, and by the plaintiff as party of the second part thereto.
    That in and by the terms of said articles of agreement the defendant agreed to sell and convey to the plaintiff a certain lot of ground with the appurtenances thereto, situated on the easterly side of Kinth avenue between Thirty-ninth and Fortieth streets, known as Ko. 482 Kinth avenue, in the city of Kew York, to contain twenty-five feet front on Kinth avenue, extending twenty-five feet in breadth or width to the rear of the lot one hundred feet in depth, for the sum of $8,000. And that the plaintiff should have the use of all the upper part of the house above the blacksmith shop in the basement, from the date of the said articles of agreement. And that the plaintiff should have the privilege of building on the front and rear of the said lot, and a right of access with building materials through the blacksmith shop to the rear of the lot from the time of the execution and delivery of the said articles of agreement, until the 1st day of April, 1859, on which day the defendant should convey by warranty deed, and deliver the whole of said property and premises to the plaintiff or his assigns, on the 1st day of April, 1859. After stating the provisions of the contract as to the payment of the purchase-money, the complaint avers, “ that immediately after the said articles were executed and delivered by the respective parties thereto, the defendant caused certain fixtures, parts of partitions, and a second floor over the floor in the store, to be severed and removed from the premises, which were a part of the real estate sold and to be conveyed to the plaintiff. And that the defendant immediately proceeded to occupy the store on said premises as a workshop and for the purpose of shoeing horses, by means whereof the said property and premises were damaged and of less value to the plaintiff. And the defendant let and rented the whole upper part of the house, and received the use thereof in violation of the said'articles of agreement. And plaintiff further says, that since the execution and delivery of the said articles of agreement, he has been to great cost and expenses in making preparations to build a first class house on said lot, twenty-five feet front on Ninth avenue, by ninety feet deep, with a basement the whole size of the house and vaults under the sidewalk in front, and incurred liabilities amounting to more than $2,000 towards the construction and erection and building such house on said premises, with the intention of having the said house fully completed by the 1st day of May, 1859, relying wholly on receiving a good conveyance and title to the said premises from the said defendant pursuant to the said articles of agreement.
    “ And the plaintiff further says, that, on the evening of the 14th February last, the defendant falsely and fraudulently induced and decoyed the plaintiff to his (the defendant’s) residence in said city for the purpose of robbing plaintiff of said articles of agreement, and then and there committing violence on the person of the plaintiff; and that the said defendant did, then and there, on the night of the 14th February, 1859, commit a violent assault on the person of the plaintiff, by forcibly taking from the person of the plaintiff, against his will and in opposition to all physical resistance on the part of the plaintiff, the aforesaid articles of agreement.
    “ And the defendant, then and there, with threatening gestures, placed himself in a striking attitude towards the plaintiff, and threatened to strike the plaintiff in his (the defendant’s) own house, á,nd stated, at the same time, that the plaintiff should do nothing more on the said premises under the said articles of agreement. And the plaintiff further says, that the defendant has ever since prevented, hindered and deprived the plaintiff of the benefits of the said property and premises aforesaid, in violation of the said articles of agreement, and also prevented the plaintiff from proceeding with the building of such house on said premises, in" violation of the aforesaid articles of agreement.
    “ And the plaintiff farther says, on his information and belief, that, by means of the wrongful acts of the defendant in the premises as aforesaid, he (the plaintiff) has sustained damage to the amount of two thousand dollars.
    “Wherefore, the plaintiff demands judgment against the defendant for two thousand dollars damages, besides the costs of this action.’’

      The demurrer specifies, as grounds of demurrer,
    1st. That several causes of action have been improperly united.
    2d. That the cause of action for damages for not fulfilling the contract set forth in the complaint is improperly united with the cause of action for assaulting the plaintiff and forcing him to give up said contract.
    3d. That the cause of action for withholding possession of the premises mentioned in said contract is improperly united with other causes of action stated in said complaint.
    4th. That several causes of action are stated in said complaint, but are mingled together, and not separately stated.
    5th. That causes of action inconsistent with each other are united in said complaint.
    6th. That a cause of action for damages for breach of contract to convey real estate is improperly united with a cause of action for withholding the possession of said real estate, and other causes of action for converting and carrying away a part of such real estate.
    7th. That the complaint does not state facts sufficient to constitute a cause of action.
    8th. That a cause of action upon contract is improperly united with causes of action for torts.
    The' demurrer is signed “ Taber & Reavey, No. 31 Insurance Buildings, No. 51 Wall street.” The order appealed from recites that it was made after hearing A. H. Reavey, Esq., of counsel for the defendant.

      John H. Ehle, the appellant (in person) insisted,
    1st. The demurrer is bad, because it is not signed by the defendant or by Taber & Reavey, as attorneys for defendant; but is signed “ Taber & Reavey, No. 31 Insurance Buildings, No. 51 Wall street.”
    2d. The demurrer in this case was sustained on the second ground and cause of demurrer, specified in the defendant’s demurrer, and was so decided by the Court on the 16th day of November last without awarding costs on such demurrer, and was so entered by the clerk of the Court in his minutes and order book, as the decision of the Court on the demurrer in this cause.

      3d. The order entered in this cause from which this appeal is taken, should be reversed on the ground: That the addition, of the payment of costs by the plaintiff to the defendant, was made some time after the cause had been decided by the Court, and such decision had been entered by the clerk in the minutes and order book as the decision on the demurrer in this cause without any costs being allowed or awarded by the Court on such decision.
    4th. The order appealed from in this case should be reversed, and judgment ordered for the plaintiff in this complaint in this action. Nothing appears in the complaint to sustain the defendant’s second cause or ground of demurrer.
    5th. The matters of contract stated in the plaintiff’s complaint, are stated as inducement to the action of tort, which is stated in a subsequent part of the complaint, and are necessary and proper to base the plaintiff’s action of tort upon.
    “ Matters of contract are proper to be stated in the complaint as inducement to an action of tort.” Ridder v. Whitlock, (12 How. Pr. R., p. 208,) and cases there cited.
    6th. All the statements in the plaintiff’s complaint are necessary and material. 1st. To show the defendant’s motive in committing such tortious acts: 2d. To show that the wrongful acts of the defendant and that all the plaintiff’s damage resulting from such acts, originated in the same transactions connected with the same subject of action, and are not subject to demurrer. (1st and 3d subd. of § 167, of the Code; Badger v. Benedict, 4 Abb. Pr. R., 176.)
    7th. The defendant’s remedy to correct the complaint is by motion, demurrer will not lie for not separately stating causes of action, they being such as might be united. (4 Abb. Pr. R., 176; id., 202; Waller v. Raskan, 12 How. Pr. R., 28; Moore v. Smith, 10 id., 361; 9 id., 336; Robison v. Judd, id., 378; id., 129; 11 id., 408; 12 id., 28; 2 Abb. Pr. R., 482; 4 id., 176.)
    8th. The plaintiff’s complaint in this case is limited to a recovery in trespass for the damages sustained in consequence of the wrongful acts of the defendant, by the prayer in the complaint, and thereby plainly designated that there is no cause of action on contract in the complaint.
    “It is the judgment asked for by the complaint, that determines to which subdivision the action belongs.” (Spalding v.
      Spalding, 3 How. Pr. R., 297; Dows v. Green, id., 377; Hulce v. Thompson, 9 id., 113; Ehle v. Bingham, 8 Barb., 494.)
    9th. The defendant’s demurrer to the entire complaint in this action is bad, and inconsistent with the several grounds of demurrer, and the several causes and grounds of demurrer are not consistent with each other. “But none of the defendant’s grounds of demurrer, that several causes of action have been improperly united appear in the complaint, and if several causes of action appeared in the complaint, the demurrer to the entire complaint must be overruled. The defendant must state the cause or causes of action, demurred to, and the grounds of the demurrer.” (Gleason v. Moen, 2 Duer, 639.)
    10th. The demurrer in this case was interposed for delay to pass the cause off, over last June Term, and has effectually delayed and prevented the plaintiff from proceeding with this action until this time, and plaintiff respectfully submits to the appellate Court, that the order appealed from in this case should be reversed, and the defendant’s demurrer to the plaintiff’s complaint in this action should be overruled, and judgment ordered for the plaintiff, with costs.

      A. H. Reavey, for respondent (the defendant).
   By the Court—Moncrief, J.

This is an appeal from an order of Mr. Justice Pierrepont, sustaining a demurrer to the complaint, with leave to the plaintiff to amend within twenty days, upon payment of costs.

The objection that the demurrer was not signed by the defendant, nor by Taber & Reavey as his attorneys, is not a ground for reversing the order. If the paper was defective it should have been returned to those who sent it, with a memorandum of the defect to the end that it might be corrected. Again, the objection should have been made and passed upon at Special Term.

The persons, whose names are signed to it, are attorneys of this Court, and as such, appeared and argued the demurrer below, without any objection being made that can be ascertained from the papers furnished upon this appeal.

The suggestion that the decision of the Court below was entered in the minutes of the clerk different in terms from the order appealed from, may be dismissed with the remark, that the Court cannot, on this argument, go behind the order as entered and appealed from. If the order did not conform to the decision of the Justice, application should have been made to resettle and correct it.

The complaint, after setting forth a contract to sell certain lands under date of 26th January, 1859, alleges,

1. That the defendant caused certain fixtures, parts of partitions, and a second floor to be severed and removed from the premises which were a part of the real estate sold, and to be conveyed to the plaintiff.

2. That defendant proceeded to occupy the store in said premises as a workshop, and for the purpose of shoeing horses; by means whereof, the said premises and property were damaged and rendered of less value to the plaintiff.

3. That the defendant let and rented the whole upper part of the house, and received the use thereof, in violation of said articles of agreement.

4. That the defendant prevented, hindered and deprived plaintiff of benefits of said property and premises aforesaid, in violation of said articles of agreement.

5. That the defendant prevented plaintiff from proceeding to build a house on said premises, in violation of said articles of agreement.

The plaintiff contends that the foregoing averments are proper, and necessary in a statement of the cause of action founded upon the allegation that the defendant, on the night of the 14th of February, 1859, committed a violent assault on the person of the plaintiff, and took from him the aforesaid agreement.

If any, the only proper inducement, in an action of assault and battery, under the former system of pleading was an averment of the right of personal security, &c.; but it was thought none was necessary. (1 Chitty on Pleadings, 411.)

The Code authorizes a party to state the whole of any one transaction out of or upon which a right of action arises. It was so held by Harris, J., in Brewer v. Temple, (15 How., 287,) where the demurrer to a complaint averring slander and assault and battery occurring at the same time, each being ■ part of the res gestee, was overruled.

The matters alleged in the present complaint, however, are not the history of one occurrence, and no more. The complaint contains a narrative of several separate and distinct matters occurring at different times, and constituting several distinct causes of action.

The plaintiff avers that, “by means of the wrongful acts of the defendant in the premises as aforesaid, the plaintiff has sustained damage to the amount of two thousand dollars,” and asks judgment for those damages.

The prayer of the complaint, therefore, has equal reference to all the matters set forth, and would permit the plaintiff to recover upon proving either of them—the breach of the contract to convey ; the removal of part of the property included in the contract; or for letting and renting the whole upper part of the house and receiving the use thereof; or for the assault and battery.

Such causes of action, in my opinion, cannot be united: they are not all parts of one transaction, nor are they of the same family, belonging to any one specified class.

The complaint, improperly uniting several distinct causes of action, is demurrable. (Amended Code, § 144.) The decision at the Special Term was correct; and the order appealed from should be affirmed, with costs.

Order affirmed.


author: By the Court — Woodruff, J.

text:
    Mayer Eisemann, Plaintiff, v. Siskint Swan and Joseph Swan, Defendants.
    1. The requisites of a special verdict are not other or different under the Code, of Procedure, than they were under the practice as settled before the Code was enacted.
    2. A general verdict determines all the issues in favor of one of the parties. A special verdict should find all the facts which are requisite to enable the Court to say—upon the pleadings and verdict without looting into the evidence—which party is by law entitled to judgment.
    3. And when a special verdict is taken subject to the opinion of the Court, the Court are not warranted in examining the evidence given on the trial, for the purpose of determining what judgment ought to be given, however clear and satisfactory the evidence may be upon the facts in issue not disposed of by such verdict.
    4. Where a general verdict is found and particular questions of fact are also answered by the jury, the general verdict decides all the issues, and if the findings upon the particular questions are not inconsistent therewith, judgment follows the general verdict; so that, in such case, the Court has a finding upon all the facts in issue.
    5. Where a special verdict only was taken and that verdict did not dispose of all the material issues, and such verdict was taken subject to the opinion of the Court at General Term, with liberty to the Court to render judgment for the plaintiff or the defendants according to law and the facts found, the General Term cannot consider the case upon the merits nor pronounce any judgment, but will order a new trial.
    (Before Woodruff, Pierrepont and Robertson, J. J.)
    Heard, March 14th;
    decided, April 18th, 1860.
    This action, was tried on the 22d day of June, 1859, before Mr. Justice Pierrepont, and a jury. The issues therein, so far as it is material to state them for the purposes of the case as decided in General Term, were as follows:
    The complaint alleged that on the 22d day of August, 1857, the defendants forcibly took and carried away certain goods and chattels of the plaintiff, of the value of $6,000, and converted them to their own use.
    The answer denied these allegations, and also averred, that on the day of August, 1857, an attachment against the property of one Solomon Meyer, as a concealed or an absconding debtor, and in favor of the defendants, was issued out of, and under the hand of one of the Justices of the Supreme Court, directing the Sheriff to attach, &c., the property of Solomon Meyer, or so much thereof as would satisfy the demands of the plaintiffs therein (these defendants,) and that the Sheriff, by virtue of such attachment, seized and attached certain goods and chattels of the description in the complaint mentioned, and at the place designated) the same being the property of the said Meyer and not the property of the plaintiffs. And that the said property was not of any other or greater value than the sum of $3,000.
    The case submitted to the General Term shows that these issues were brought to trial, and that the only questions submitted to the jury, and the only verdict taken were as follows, viz. •

      “ 1st. What was the value of the property in question when taken by the Sheriff?
    “ The jury answer $2,500, and that interest thereon to the present time is $320.80.
    “2d. Did Solomon Meyer make the assignment in question with the intent to hinder, delay or defraud the creditors of the said Solomon Meyer of their lawful debts or demands ?
    “Jury answer, ‘Yes.’
    “ The foregoing verdict is taken subject to the opinion of the Court at General Term, with liberty to the Court to render judgment for the plaintiff or defendant according to the law and the facts above found.

    “Judgment in the meantime suspended; to be heard at the General Term in the first instance.”
    No other verdict or determination of the issues between the parties was had or taken.
    It appeared by the case that proofs were given showing that the plaintiff claimed the property in question under an assignment made to him by Solomon Meyer, in trust, for the payment of creditors; that the defendants were partners in trade; that the goods were taken by the Sheriff, by direction of Joseph Swan, one of the plaintiffs, under an attachment issued in their favor against the property of Solomon Meyer; and proofs which it was claimed showed that the assignment was fraudulent and void as against creditors, and proofs on the question of the value of the goods taken.
    Some exceptions were taken on the trial to the admission and rejection of evidence—to the ruling of the Court dismissing the complaint as to Siskint Swan—and to the refusal of the Court to charge as requested by the plaintiff’s counsel on the subject of fraud in an assignment.

      S. Sanxay, for the plaintiff, argued,
    I. That the defendants being partners are jointly liable for the torts of either in the prosecution of the copartnership business. (Moreton v. Hardern, 4 Barn. & Cress., 223; Coll. on Part., 252254, 296-297, 305-307; Story on Part., pp. 257, 260; Coats v. Darby, 2 Comst., 517.) And the complaint should not have been dismissed as to Siskint Swan.

      II. That the plaintiff’s exceptions to the rejection of evidence were well taken.
    III. That the defendants, not being judgment creditors, could not impeach the assignment as fraudulent as against creditors. (Andrews v. Durant, 18 N. Y. R., 496.)
    IV. That there was no evidence to warrant the Court in submitting the second question to the jury, and that the Court should have charged as requested.

      David D. Field, for the defendant, argued,
    I. That a fraudulent assignment may be impeached by an attaching creditor. (Cross v. Phelps, 16 Barb. R., 502; Thayer v. Willet, 5 Bosw., 344.)
    II. That the plaintiff’s exceptions are not well taken; and the complaint was properly dismissed as to Siskint Swan, against whom there was no evidence, except that he was a copartner with Joseph Swan. (Averill v. Williams, 1 Denio, 501; 4 id., 295.)
   By the Court — Woodruff, J.

The General Term are constrained to decline pronouncing any judgment upon this verdict. It is imperfect, and does not furnish the facts necessary to warrant any judgment upon the issues raised by the pleadings.

We think the verdict was taken under an erroneous impression in the minds of the parties respecting the requisites of a special verdict, when that alone appears upon the record in an action for the recovery of money only, or of specific real property.

In this respect, there is nothing in the Code of Procedure to warrant the idea that the requisites of a special verdict are other or different now than they were before the Code was enacted.

A general verdict determines the entire issue in favor of the plaintiff or the defendant.

A special verdict finds all the facts which are requisite to enable the Court to say, upon the pleadings and verdict, which party is by law entitled to judgment, without referring to the evidence. The pleadings and the special verdict together should show, when separated from all else that, appeared on the trial, and as a complete record, that one or the other party is, as mere matter of law, entitled to judgment. For the purpose of determining what judgment shall be given, the Court are therefore not warranted in examining the evidence given on the trial, and ascertaining what other facts were proved which were denied in the pleadings, however clear and satisfactory the evidence may be. (Jenks v. Hallet, 1 Caines’ R., 60; Williams v. Jackson, 5 J. R., 502. See this subject fully discussed by Jones, Chancellor, in Seward v. Jackson, 8 Cow., 409, et seq.) He says: “ It is of the essence of a special verdict that it should be a finding by the jury of the facts on which the Court is to pronounce the law. * * * The jury is to find the facts in issue between the parties. * * * To the Court it belongs to apply the law to the facts, but the Court has no jurisdiction to decide upon evidence, or to enter into any question of fact that may arise in a cause. This is a cardinal rule in the law of special verdicts, which has always been observed and enforced by courts of law, and ought, in my opinion, never to be relaxed.” (See also Rex v. Aire & Calder Navigation, 1 T. R., 666; Bird v. Appleton, 1 East, 111; Hubbard v. Johnstone, 3 Taunt., 209; La Frombois v. Jackson, 8 Cow., 600; Williams v. Williams, 7 Abb. Pr. R., 90.)

There are no provisions in the Code modifying this rule; on the contrary, the definition of a special verdict is in affirmance of the rule. “A special verdict is that by which the jury find the facts only, leaving the judgment to the Court.” (Code, § 260.) By the plainest implication, this imports that the special verdict must contain all the facts which are in issue by the pleadings, the determination of which is necessary to enable the Court to give judgment, and it clearly excludes the idea that the Court can look into the evidence itself to ascertain the facts, or any of them.

In the case before us, the answer denies that the defendants took and carried away the plaintiff’s goods. The jury have not found that they did so. A conversion is alleged in the complaint, and denied in the answer; there is no finding on the subject.

The answer alleges the issuing of an attachment against the property of Solomon Meyer. This allegation is in issue by the Code of Procedure, and there is no finding on the subject. The answer avers that the property taken by virtue of the attachment was not the property of the plaintiff, but was the property of Solomon Meyer. The finding of the jury does not dispose of the issue upon that allegation.

In short, it does not appear, by the pleadings and verdict, that the defendants have been guilty of any wrong, nor that the plaintiff has established any right.

The Code permits a j ury, in actions “ for the recovery of money only, or specific real property,” to render a general or special verdict, in their discretion. If they find a general verdict, that, of course, disposes of all the material issues. If they find a special verdict, they must state all the facts which are material to enable the Court to say, upon the pleadings and verdict only, to which of the parties judgment should be awarded.

“In all other cases the Court may direct a special verdict in writing upon all or any of the issues.” This enables the Court, in cases in equity, to submit those questions to the jury, and those only, upon which the aid of a jury is desired, and to determine for itself the other issues. This case is not embraced in that provision.

But, “in all cases, the Court may instruct the jury, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.” (Code, § 261.) When this is done, it is obvious that the general verdict disposes of all disputed questions of fact: they are to be deemed found in favor of the party who obtains the verdict; and then, if the facts specially found are not inconsistent therewith, the party has judgment. So that the Court have a finding upon all the facts in dispute.

Probably, in this case, it was the intention to take a verdict under this last provision; but the omission to take a general verdict renders it impossible to say how any of the issues, not covered by the specific questions answered, are to be disposed of.

We could, it is true, if it were permitted by the rules governing the subject, look into the evidence. We could discover what questions appear, by the Case, to have been contested on the trial; and we could say, if all the evidence given on the trial is contained in the printed Case, how, in our judgment, the jury ought to have found upon the issues. But we are not at liberty to do this, and then make our findings of fact the basis of a judgment: and the reasons have already been stated.

Mor does the reservation or stipulation contained in the case enable us to do so. That only authorizes us to render judgment according to the law and “ the facts above found.” The facts found are not sufficient to warrant any judgment. They do not determine all the issues of fact raised by the pleadings.

Under these circumstances, we see no alternative but to order a new trial. It is just to our associate, before whom the cause was tried, to say that he informs us that the Case has been made and settled by the parties without his revision or approval; and that it is, in many particulars, an erroneous statement of what occurred at the trial.

New trial ordered; costs to abide the event.


author: By the Court—Bosworth, Ch. J.

text:
    Williams & Hall v. John S. Birch, L. B. & W. G. Nutting, B. B. Tilt, T. Thorp, and S. Newman.
    1. After a trial, and a review at General Term of the exceptions taken at such trial, the Court, upon a motion to conform the pleadings to the facts proved, cannot so amend them as to convert, merely by force of such amendment, a correct decision into an erroneous one, and an irreversible into a reversible judgment.
    2. After judgment, or after a trial and a hearing at General Term and a decision there of the questions of law arising at the trial, amendments of the pleadings are allowed only for the purpose of upholding the judgment, when that would be just, but not_ for the purpose of making regular and correct proceedings erroneous.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief, and Robertson, J. J.)
    Heard, May 26th;
    decided, June 2d, 1860.
    Motion to conform the pleadings to the facts proved.
    This action was brought to recover the value of six bales of silk, or the silk itself, sold by the plaintiffs to the defendants, John S. Birch, L. B. Nutting & William G. Nutting, composing the firm of John S. Birch & Company, on the grounds that such sale was procured by the fraud of the latter; that Tilt, as the agent of Thorp, received the silk from John S. Birch & Company, knowing it had been obtained by the frauds stated, “ and without paying any consideration therefor;” that Newman had in his possession four of the bales, which he took with knowledge of the “fraud, and that he had not paid any consideration for the said goodsand that the plaintiffs had demanded possession of the goods, and that Tilt, Thorp and Newman respectively refused to deliver the silks, they severally held, to the plaintiffs.
    The plaintiffs obtained a verdict for the value of the goods, against John S. Birch & Company, thus establishing the fraud of the latter; and a verdict was rendered in favor of Tilt, Thorp and Newman.
    The questions of law arising at the trial, upon exceptions taken by the plaintiffs to refusals to charge as requested, and to the charge as made, were ordered to be heard, in the first instance, at the General Term.
    They were so heard; and judgment was ordered to be entered according to the verdict.
    On the trial, an account, rendered by Tilt to John S. Birch & Company, which was proved to be correct, was produced in evidence ; a,nd that account showed that Tilt received the goods as security for advances made by him to John S. Birch & Company at a usurious rate.
    The Judge was requested to charge, that if J. S. Birch & Company, got possession of the silks by fraud, the other defendants acquired no title from them, “ unless they obtained the goods for a fair consideration, in the usual course of business, and without notice of any circumstances sufficient to put them on inquiry as to J. S. Birch & Company’s title,” and that a pledge or consignment upon a usurious advance, is not a valid contract.
    The Judge declined to charge the last proposition, and decided “that usury was not a question in the case,” or as subsequently stated in his charge, that the question of usury does not arise in this case.” Exceptions were taken to the charge as made, and to the refusal to charge as requested.
    The plaintiffs now move at General Term, for an order conforming the complaint to the facts as proved, in respect to the matter of the pledge or consignment of the goods upon the said alleged usurious advances.
    The case itself, with the proceedings had at the trial, and the opinion of the Court upon the questions of law there arising, is reported. (Ante, p. 299.)

      D. D. Field, for plaintiffs.

      L. R. Marsh, for defendants.
   By the Court—Bosworth, Ch. J.

We understand that the Judge, at the trial, in holding that the question of usury did not arise in this case, decided, and intended to be understood as deciding, that such fact could not be proved under the pleadings; and that the plaintiffs for that reason could not claim any benefit from the proof given of it, in the progress of the trial.

This Court at General Term, affirmed both of these views. If the Court decided erroneously, the plaintiffs’ remedy by appeal is perfect.

It is only on the assumption that the decision is correct, and would be erroneous had the complaint been in the form in which it is now sought to make it, that it is of any importance to the1 plaintiffs, that the present motion should be granted.

For if granted, there will still remain a verdict against the plaintiffs as to three defendants, and a decision of the General Term that judgment be entered according to the verdict. Unless further relief, shall be sought in this Court upon a reargument, the plaintiffs’ only remedy, will be an appeal from the judgment of the General Term.

In this view, the only effect of the amendment would be, to make the judgment erroneous and reversible solely by reason of such amendment, notwithstanding the decisions at the trial, and subsequently at the General Term, were correct and according to law, as the pleadings stood when those decisions were made.

We are not aware of any decisions which hold it a proper exercise of discretion, or that the Court has the power to so amend the pleadings, after a trial and a review at the General Term of exceptions there taken, as to convert, merely by force of such amendment, a correct decision into an erroneous one, and an irreversible into a reversible judgment.

In Prindle v. Aldrich, (13 How., 466,) the plaintiff recovered at the trial, and the judgment was reversed, on the ground that the case as proved, differed in its entire scope and meaning from that alleged. The plaintiff then moved to amend his complaint by stating his case, as he had succeeded in proving it. The application was granted, on the plaintiff' paying all the costs of the action, including the costs of the motion for a new trial, and $10 costs, of opposing the motion. The plaintiff could have discontinued, and brought a new suit on the same terms, and that decision is not an authority in support of the present motion. When that motion was made and granted, there was no judgment in the action.

In Bowdoin v. Coleman, (3 Abb., 431,) it was held, that upon an appeal to the General Term, the Court may treat the pleadings as having been amended so as to conform them to the facts proved, in any respect in which the Court ought clearly to allow an amendment upon application at Special Term. It also held, that the alleged defect was not one requiring a reversal of the judgment, and affirmed it. (Id., 442, 443.)

In Harrower v. Heath, (19 Barb., 331,) the Court, at General Term, held, that “a technical informality, in stating the setoff” in the answer, might be amended, and ordered accordingly in support of the judgment, and affirmed it.

In Clark v. Dales, (20 Barb., 65,) the point was taken at General Term, that the complaint did not state facts sufficient to constitute a cause of action. The Court held the defect one which under the old system, would be cured by verdict. They amended the complaint by inserting facts specially found by the Court, (the cause having been tried without a jury,) (p. 67,) and affirmed the judgment.

In Bate v. Jordan et al., (1 Kern., 237,) the complaint was alleged to be fatally defective, and its dismissal was asked at the trial for that cause. But the Court of Appeals held, that as the answer alleged the fact, a statement of which in the complaint was alone essential to its sufficiency, the motion to dismiss was properly denied, and treated the complaint as having been amended and affirmed the judgment.

In Hart v. Hudson, (6 Duer, 294, 308,) the Court treated the variance as one which it was the duty of the Referee to have disregarded, and assigned his refusal to do so, as one ground for reversing his judgment.

Lounsbury v Purdy, (18 N. Y. R., 515,) decides that when the complaint omits facts essential to a cause of action, but which might be supplied by amendment under section 173 of the Code, before or after judgment, and these facts are proved at the trial after the Judge has refused to dismiss the complaint, the defect of statement is not ground for an appeal.

In Grasper v. Adams, (24 Barb., 287,) the Court said that section 178 “was intended mainly (if not solely) to allow amendments so as to sustain a judgment, not for the purpose of -reversing it.” These are all the cases that were cited in support of the present motion, and in all of them which had proceeded to judgment, the amendments made were made in support of the judgment.

In Englis v. Furnis, (3 Abb., 82,) it was held, that amendments are allowed after judgment, only for the purpose of upholding it when that would be just, and not for the purpose of making regular and correct proceedings erroneous. (And, see Brown v. Colie, 1 E. D. Smith, 266-270,)

In Brazill v. Isham, (2 Kern., 17,) the Court held, that an award, the making of which was proved by the plaintiff, was not available as a defense, the defendant not having set it up in his answer.

Field v. The Mayor of New York, (2 Seld., 179-189,) decides, that though payment be proved, yet if not pleaded, the defendant is not entitled to rely on the defense thus proved.

The decision of the Greheral Term, in the present case, was, that usury in the transaction between J. S. Birch & Company, and' Tilt & Thorp, was not alleged in the complaint, and that there were no averments in the complaint, making proof of that fact admissible.

.Assuming that decision to be correct, the cases of Field v. The Mayor, and Brazill v. Isham, are conclusive, that proof of that fact, though given on the trial, was not available to the plaintiffs.

We are of the opinion that section 173 of the Code does not authorize the Court to grant the present motion.

The motion should be denied, with $10 costs.

Ordered accordingly.


author: Woodruff, J.

text:
    Edward Hays, by his Guardian, v. Otway H. Berryman.
    1. A defendant who, after suit brought, in which a sworn answer is required, voluntarily leaves the country and remains absent several months without communicating with his attorney, is guilty of such gross laches that the Court will order judgment for the relief sought, notwithstanding the belief of his attorney that he has a defense.
    2. If the object of the defendant is to mitigate the damages in an action for an assault and_ battery and false imprisonment, no answer is necessary. Evidence in mitigation may be given by the defendant on the execution of the writ of inquiry.
    3. The absence of a material witness will be no ground for denying judgment and awarding a -writ of inquiry, if it appears that the witness has been in the city several times since the action was brought, and no reason is given for not taking his testimony.
    4. That the attorneys for* the defendant are also the regular and accustomed attorneys and counsel of the Sheriff of the city and county of New York, in all his litigation and business, is no sufficient reason for departing from the usual practice of directing the writ of inquiry to be executed by the Sheriff before a Sheriff’s jury, and ordering an assessment at a Trial Term before one of the Judges and a jury there impanneled.
    (Before Woodruff, J.)
    At Special Term;
    June 21st, 1860.
    Motion by the plaintiff in an action for assault and battery and false imprisonment for judgment on a default of answer, and that, instead of an order that a writ of inquiry of damages issue to the Sheriff, to be executed by him before a Sheriff’s jury, an order might be made directing that the plaintiff’s damages be assessed at the now present Trial Term, before the Judge holding such Term, and a jury there impanneled. The ground upon which this special order was sought was, that the attorneys for the defendant are, and have been for many years, the legal advisers, attorneys and counselors of the Sheriff in all his business, and in intimate and confidential intercourse with him, and that the plantiff believes that on an assessment they will have an unfair advantage over him and his attorneys, and that the damages will not, therefore, be fairly assessed-
    On the part of the defendant it was attempted to obtain further time to answer, and time to produce a witness who was absent. It appeared that the defendant left the city and went from the country soon after the suit was brought, and had not communicated with his attorneys since: that some months had elapsed, and the time to answer had been several times extended. The complaint was sworn to; and some negotiation had been had respecting a waiver of the oath to the answer: and the indication was, that the facts the defendant’s counsel proposed to set up in the answer were rather matters in mitigation than matters of defense. The defendant’s attorneys were acting in good faith, and deemed it important that the answer should be put in. It appeared that the witness whom the defendant wished to examine had been several times .in the city since the action was commenced, and was a seafaring-man, and was now absent on a voyage.

      William C. Russell, for the plaintiff, in support of the motion.

      A. Oakey Hall, for the defendant, in opposition.
   Woodruff, J.

1. The delay on the part of the defendant is not so excused as to warrant the granting of further indulgence to the defendant and further time to answer. The excuse sufficiently exonerates the defendant’s attorneys, who may have done their duty; but it does not relieve the defendant himself from the imputation of gross laches.. Had he given proper attention to his own business, he would either have sworn to his answer before he left the country, or have devised some mode of communicating with his attorneys for that purpose during the many months that have since elapsed.

2. If the object of putting in an answer be to enable the defendant to give evidence in mitigation of damages, the answer is probably unnecessary. Evidence in mitigation, it has been held, may be given by a defendant on the execution of a writ of inquiry. (5 Duer, 646; 9 How. Pr. R., 150.)

3. The absence of the witness mentioned in the affidavits on the part of the defendant, would furnish no adequate ground for denying the motion, since he might have been examined before he left on his last voyage, or on other occasions since the action was brought. Ho special reason is assigned for not taking his deposition, and no diligence is shown to prevent the loss of his testimony.

4. But I do not deem the reason given for moving to have the damages assessed in Court a sufficient one to require us to depart from the usual practice. The only ground is, that the attorneys for the defendant are also the legal advisers of the Sheriff in matters pertaining to his office. If this reason should prevail in this instance, it should prevail to make such an order proper in all cases of the execution of a writ of inquiry in which those attorneys are retained by defendants, and not only so, it would forbid the granting of a writ of inquiry in all cases in which they were the moving counsel on behalf of plaintiffs also. Ho imputation upon the integrity of either the Sheriff or the attorneys is contained in the affidavits by direct terms, and yet the granting of the motion would incidently impute want of fairness at least to the Sheriff and the attorneys also.

The motion must be granted so far as it prays the relief sought in the complaint, and an order may be taken for a writ of inquiry of damages or an assessment by the Sheriff’s jury, unless the plaintiff prefers to accept the answer without the oath of the defendant, in which case if the cause is on the Calendar of the June Term, he can proceed to trial in the usual manner

Ordered accordingly.


author: Robertson, J.

text:
    John Blackie et al., Plaintiffs, v. Robert Neilson, Defendant.
    1. In an action brought for the tortious conversion of the plaintiffs’ goods and chattels, to the use of the defendant, the latter is not, under the Code, entitled of course or of right to require the plaintiff to furnish him with a particular statement or description of the goods and chattels for the value of which recovery is sought. But in the discretion of the Court such a description, in the nature of a bill of particulars, maybe ordered to be furnished, to enable the defendant to answer the complaint or to prevent surprise at the trial. (Code, § 158.)
    2. On an application by the defendant, in such an action, for an order that the plaintiff furnish such particulars when the complaint contains a description of the goods, &c., in general terms, if it appear that the plaintiff is unable to describe them with greater particularity, or that the defendant himself knows as well or better than the plaintiff the very details which he seeks’ the motion will be denied.
    (Before Robertson, J.)
    At Special Term;
    July 5th, 1860.

      This action was brought to recover damages for the wrongful conversion by the defendant of divers goods and chattels of the plaintiffs. The complaint sets forth, specially, eight promissory notes thus converted, and describes the rest of the property as one thousand volumes of books, five hundred dollars in money, one thousand letters, one thousand receipts, and ten account books, of which the plaintiffs aver they are unable to give any other description, the defendant having concealed from them the particulars.
    An order was obtained exp arte, from the Court, requiring the plaintiffs to serve a bill of particulars; and a paper was served by them purporting to be one; in it one item is of a certain sum described as “ cash remaining in the defendants hands as shown by the account rendered,” another is of another sum as the value of 11 certain numbers and parts and specimens and cases/” a third is, “ books, parts and numbers delivered to J.W. Walters; ” a fourth is, “ a note received from Walters, amount unknown ; ” a fifth is, “Bibles delivered by defendant to John Neilson to be sold; ” a sixth is, “ a stock of goods admitted to have been received by defendant and lost /” a seventh is, “ all the invoices, receipts and letters held by the defendant belonging to the plaintiffs; ” and the last is, a certain sum of money, as the value of “ one or more notes of a Mr. Gumming.”
    By the affidavits on the part of the plaintiffs, it appeared that the goods sued for came into the defendants’ possession, as agent for the plaintiffs, and that the latter never had physical possession of them at all.
    A motion is now made for a further bill of particulars, to enable the defendant to put in an answer.
   Robertson, J.

If this be a case in which a bill of particulars can be demanded by the defendant as a matter of right, or in which the plaintiffs can furnish a better bill of particulars than they have giyen, and the defendant has not as much means of knowing for what the suit has been brought as the plaintiffs, it is clear they ought to be made to furnish an additional one, as that served is plainly insufficient.

The only case in which the Code gives the defendant a peremptory right to a bill of particulars is where an account is set out'in the pleadings, (§ 158,) in all other cases the Court may order one; thus leaving it a matter of discretion whether it should be ordered or not. This discretion seems to be regulated by the ignorance of the defendant of the claim against him, and the superior knowledge of the plaintiff; thus, in an action brought to settle a partnership account, it was held that a demand of particulars was not a matter of right, and the necessity of giving them should be established by the moving papers. (Depew v. Leal, 5 Duer, ,663.) In another action, similar to the present, an order for a bill of particulars was discharged with liberty to renew it, in case the plaintiff did not apply for a discovery to enable him to give such bill. (Young v. De Mott, 1 Barb., 30.) In that case it appeared prima facie that there was written information in the defendant’s possession which would assist the plaintiff to make up a bill of particulars. Proceedings for discovery are confined to books, papers and documents in the possession or under the control of the party from whom the discovery is sought. (Code, § 388; 2 R. S., p. 199, § 24.) It does not appear in this case that the defendant has in his possession any such writings as would better enable the plaintiffs to furnish the particulars required; the articles sued for, are alleged to have been converted, and if so, are probably out of the defendant’s possession; at all events, even if they were in his possession, it is very doubtful whether the Court would order the production of them as chattels, to be inspected externally, so as to enable the plaintiff merely to describe them more minutely. Moreover, in order to obtain the discovery, there must be some description furnished of the articles to enable the Court to determine whether their production is material; (Hoyt v. American Exchange Bank, 1 Duer, 652;) and in this case, the plaintiffs have sworn in the complaint, that by reason of the defendant’s concealment, they can give no better description than they have already furnished. To require, therefore, the plaintiffs to apply for a production, by the defendant, of the goods in the possession of the latter,'for which suit is brought in order afterwards to inform the latter that they are such goods, seems superfluous. I do not think, therefore, the defendant entitled to further particulars, merely because the plaintiffs might have placed themselves in a better situation to give the defendant information by an application for a discovery.

The affidavits, too, show that the defendant received the articles, whose conversion is complained of, as the agent of the plaintiffs ; the latter never saw them, and have no means of describing them except in general terms, which was always admissible in an action of trover before the Code. If the complaint is not sufficiently definite and certain in its description, the remedy is by a motion to make it so, when the ability of the plaintiffs to be more precise could be inquired into. (Code, § 160; Nellis v. De Forest, 16 Barb., 67.) The defendant evidently has all the knowledge necessary to enable him to shape his answer, which is the object for which he now seeks to obtain a further bill of particulars; if the object be to restrict the plaintiffs to certain claims to prevent surprise, it has been attained by compelling them to make the affidavit on this motion which confines the articles, whose conversion is sued for, to those received by the defendant as the agent of the plaintiffs; and if the kind is not rendered sufficiently certain in the complaint, it should be made so on motion. It would amount to a denial of justice, if a party who had been defrauded by an agent should be deprived of all remedy unless he could describe, with perfect accuracy, every article of his appropriated by such agent to his own use.

The motion therefore must be denied, without costs to either party.


text:
    Benjamin F. Howe, Plaintiff, v. John H. Searing, Defendant.
    1. On an appeal to the Court of Appeals from a judgment awarding to the plaintiff a perpetual injunction, restraining the defendant from doing the acts which are the subject of complaint in the action, if an undertaking be given, by sufficient sureties, in the sum of $250, (or that sum be deposited with the clerk,) pursuant to section 334 of the Code, such appeal operates as a stay of all proceedings upon the judgment. (Code, § 342.)
    2. An application to the Court to punish the defendant for a contempt in violating the injunction awarded by such judgment, and the issuing of an attachment, and a commitment for such contempt are respectively proceeding!? “ upon th.6 judgment,” and the right of the plaintiff to make such an application, and the action of the Court thereon are stayed, pending such appeal.
    3. But the taking of such appeal and perfecting the same do not vacate or suspend’ the injunction so awarded. The appeal only operates to suspend for the time being, the power to punish the defendant for the violation of the injunction.

      4. Hence, the defendant, after being duly notified of such judgment proceeds at his peril, and if he violates its provisions he is in contempt, for which he will remain liable to punishment, and may be punished when the appeal is determined, unless the judgment is reversed on the appeal.
    (Before Woodruff, J.)
    At Special Term;
    July 7th, 1860.
    By the final judgment in this case the defendant was enjoined and restrained from using the name of the plaintiff “Howe,” or the term “ Howe’s ” in connection with the business of baking, or as descriptive of the bakery kept by him, or upon the signs or wagons, tickets or bills used by him, and was required forthwith to cause such words to be stricken out and erased from the signs on the building, wagons, &c., so used.
    After being personally served with the judgment, the defendant appealed to the General Term, where such' judgment was affirmed, and he then appealed to the Court of Appeals, and the undertaking by sufficient sureties in the sum of $250 as required by section 334 of the Code was executed and filed.
    The defendant continued to use the name of “ Howe ” and “ Howe’s ” as theretofore, in disregard of the judgment of this Court, and the plaintiff thereupon moved this Court for an attachment to punish the defendant for a contempt in not obeying the judgment.
    The facts appear in the case on the appeal to the General Term, reported ante, page 354. and in the opinion of the Court on this motion.

      Moses Ely, for the plaintiff, in support of the motion,

      Luther R. Marsh, for the defendant, in opposition thereto.
   Woodruff, J.

The judgment in this action in terms enjoined and restrained the defendant from using the name of the plaintiff, “Howe,” or the term “Howe’s,” in connection with the business of baking, or as descriptive of the baking establishment kept by the defendant, or upon the signs or wagons, tickets-or bills, used by the defendant; and the said judgment required the defendant forthwith to cause the word “Howe,” or “Howe’s,” to be stricken out and erased from any sign, on the premises of the defendant, and from any wagon or wagons used by him, and awarded to the plaintiff his costs of suit.

The judgment so rendered, being entered, was duly served on the defendant, personally; and within the period allowed therefor, he appealed to the General Term of this Court, by whom the judgment was affirmed, and the judgment of affirmance was duly served on the defendant, personally. Thereupon the said defendant appealed to the Court of Appeals from the judgment, and the undertaking required to render such appeal a stay of proceedings, by sections 334 and 342 of the Code, was executed and filed.

The plaintiff now moves for an attachment to punish the defendant for a contempt in not obeying the judgment, upon proof that he still continues to use the name of “ Howe" and “Howe’s” on his signs and otherwise, as descriptive of his baking establish-' ment, and upon the signs and wagons used by him, and has not discontinued the use of those names, but continues to use them, and by other means to hold out to the public that the establishment of the defendant is kept and superintended by the plaintiff.

By the express terms of the 342d section of the Code, the perfecting of an appeal, (in cases not provided for in certain specified sections which do not include the present case,) by giving the undertaking mentioned in section 334, shall stay all proceedings in the Court below upon the judgment appealed from.

If, therefore, this motion is a proceeding “ upon the judgment,” the motion is improperly and irregularly made; for, as to all such proceedings, the plaintiff’s hands are tied.

And if an attachment and a commitment thereunder, for disobeying the judgment appealed from while the appeal is pending, are “ proceedings upon the judgment,” then the motion therefor cannot be granted; for, not only the action of the plaintiff, but the action of the Court therein, is stayed pending the appeal.

Although the subject of staying proceedings pending an appeal from an interlocutory order of the Court is discussed at length in Hart v. The Mayor, &c., (3 Paige, 381,) and the provisions of the Revised Statutes in relation to such appeals, and the cases in. England stating the practice of the Court of Chancery and the House of Lords, are cited and considered, no case is cited, to me bearing upon the precise point raised by this motion.

In Graves v. Maguire, (6 Paige, 381,) in the opinion of the Chancellor, given under the provisions of the Revised Statutes, he says: “ The effect of an appeal, after the proper steps have been taken to render it a stay of proceedings, upon the order or decree appealed from, is, to leave the proceedings in the same situation as they were at the time of perfecting such appeal, but not as they were before the order or decree appealed from was entered. If the order appealed from was an order granting an injunction, the same is not dissolved by the appeal, so as to authorize a party to proceed in violation of the injunction pending such appeal, although the present or immediate power of the Court below to punish the party for a breach of the injunction, pending the appeal, would, perhaps, be suspended until after such appeal was disposed of by the appellate Court.”

The statute which was then in force applicable to the subject (2 R. S., p. 607, § 89) declared that the filing and perfecting an appeal, by giving security for costs, “ shall stay all proceedings in the Court of Chancery upon the order or decree appealed from, and upon the subject-matter thereof.”

The 82d section of the same article of the Revised Statutes (2 R. S., 606,) provided that an appeal from an order or decree directing the payment of money should not “stay the issuing of execution or other process to enforce the decree or any proceedings thereon, unless a bond be given by or on the part of the appellant,” &c.

Under this section it was held that an appeal and the giving of the bond, after execution issued, do not, of themselves, stay the Sheriff from proceeding upon the execution; but that an order of Court is necessary to effect such a stay. (Burr v. Burr, 10 Paige, 166; Clark v. Clark, 7 id., 607.)

If the statute last referred to be taken to mean, as-it clearly must, by implication, that, if a bond be given, the appeal shall stay the issuing of execution or other process to enforce the decree and any proceedings thereon, the decisions last cited must proceed upon the ground that, execution having issued, the case is not within the description in the statute, and the proceedings of the Court may be stayed, and yet the Sheriff may consummate the execution of the process.

But if the views of the Chancellor expressed in Graves v. Maguire, under a statute in all particulars material to this discussion, identical with section 834 of the Code are sound, the defendant is in contempt for disregarding the decree of this Court, and he will be in contempt so long as he violates its provisions. From the moment it was served upon him it became operative as an injunction, and no appeal would dissolve it or suspend its operation as such. When the appeal was taken, he was under injunction, and if the appeal stayed the proceedings it did not release the defendant. He is still held under injunction in the same situation as he was when the appeal was perfected. And every act of disobedience is an act of contempt for which he is liable to punishment.

I think this view of the subject is clearly correct, and that in some form and at some time the plaintiff will be entitled to full redress for the defendant’s disregard of the judgment in the plaintiff’s favor.

But, as also intimated in the opinion of the Chancellor, it does not follow that the defendant can now be proceeded against for his contempt.

Such a proceeding is necessarily founded upon the judgment itself. It is instituted to compel the defendant to yield the very relief which the plaintiff sought by his complaint, and which the action was brought to secure; it is instituted to compel the defendant to yield the very relief which the judgment awarded to the plaintiff. It is a proceeding to enforce the judgment, which can probably be enforced in no other manner. It is the ordinary means of enforcing such a judgment. The statute authorizing the proceeding terms it a proceeding “to enforce civil remedies.” (2 R. S., 534, &c.)

The title of the plaintiff rests on the judgment and upon that alone. I do not know of any general expression, therefore, which would more plainly include the present application than that which is used in the Code as well as in the Revised Statutes, by both of which “ all proceedings in the Court below upon the judgment appealed from are stayed,”

I think, therefore, that no present proceedings can be taken, to punish the defendant for violating the judgment, pending the appeal.

The defendant will act at his peril. If the judgment appealed from shall be reversed, it will then appear that the plaintiff has no such rights as were awarded to him by the judgment; the judgment will be held for nought, and no proceedings for disregarding it could thereafter be brought and sustained; but if it shall be affirmed, the plaintiff will be at no loss for means of punishing the defendant for what will then be the finally established right of the plaintiff, and for what will then be contumacy for which the pending appeal will furnish no protection.

And this view of the subject is I think to be preferred to one which pending the appeal might subject the defendant to imprisonment, for which on reversal (if that should happen) there might be no adequate compensation.

It is plausibly suggested that if the defendant, pending the appeal, continue to use the plaintiff’s name, the relief which at the end of the litigation he may obtain will be of no value. That the use of his name and reputation by the plaintiff during that time will destroy the whole object and purpose of the suit.

But the answer is equally plausible; if the defendant does obey the judgment of the Court pending the appeal, discontinuing the use of the plaintiff’s name, which he claims the right to use, as an aid to his business and the good-will which he purchased, such a discontinuance will destroy the whole value of the right he claims; at the termination of the appeal, two or three years hence, he cannot regain the advantages which he now has in the use of the name.

Heither of these considerations can prevail in favor of either party. The plaintiff has established his right to enjoin and restrain the defendant. He has judgment therefor and has placed the defendant under injunction.

The defendant acts at his peril in disregarding the judgment.

But pending the appeal, proceedings against the defendant for contempt in such disobedience are proceedings on the judgment which cannot be prosecuted.

The motion must therefore be denied, with $10 costs.

Ordered accordingly.