text:
    MORGAN L. LIVINGSTON, et al., Respondents v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants. SILVIA LIVINGSTON, Respondent v. The Same. JULIA LIVINGSTON, Respondent v. The Same.

      Referee, report of; incorporation therein of the findings made at the request of either party ; Save parties a strict statutory right to such incorporation ?
    In these three cases it was claimed, on the motions in the court below and on appeal, that the reports of the referee in each case did not contain all the facts found by the referee at the request of the defendant, and for that reason the reports should be vacated and referred back to the referee for a report containing all of said findings, and such claim appeared to be in form substantially correct.

      Seld, that the reports as made were clear, compact and concise without such findings, and the defendants were not prejudiced by the omissions of the referee to incorporate all the findings proposed by them, and such practice was to he highly commended unless the law (sections 1022, and 1023, of the Code) prescribed, and defendants had a strict statutory right to the incorporation of such findings in the report.

      Seld, that on review of said sections 1022 and 1023, and the practice and decisions of the courts, that defendants had no such right, and the decisions of the court below, denying the motions of defendants to vacate and set aside the reports, etc., were affirmed.
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.

      Decided November 10, 1891.
    Appeal by the defendants from an order denying their motions in each of said actions, to vacate and set aside the reports of the referee in each of said actions, and that the referee be directed to make reports therein which shall include all the facts found by him and the conclusions of law found thereon.

      Davies & Rapallo, attorneys, and Julien T. Davies, Brainard Tolles and Sidney Smith of counsel, for appellants, argued:—
    The learned judge at special term erred in refusing to send the reports back for amendment. Section 1022 of the Code of Civil Procedure provides as follows: “ The decision of the court on the report of the referee upon the trial of the whole issue of fact, must state separately the facts found and the conclusions of law; and it must direct the judgment to be entered thereupon.” This section clearly requires all the facts found by the referee to be embraced in the report. There is no distinction made by the Code between findings of fact and conclusions of law proposed by either plaintiffs or defendants but all the facts and conclusions, by whichever party offered, and found by the court or referee, are to be included in the report or decision, as the case may be. The. decision or report is based upon all the facts found and they are each and every one necessary to support the judgment. It is not to be presumed that any of the findings or rulings of the referee are immaterial to the issues before him, or can be eliminated from his report without lessening its force and effect, and when he has passed upon such findings affirmatively they necessarily express liis conclusion, founded upon an examination of the evidence, that they are needed to uphold the judgment. This being so it is apparent that all the facts found by the referee should appear in his report. The provision of the Code is explicit. There is no discretion left to the court or referee, the language is mandatory. “ The referee must state separately the facts found and the conclusions of law.” These appellants were therefore entitled as a matter of right to have the findings which were omitted from the report inserted therein. If there is any rule of practice to the contrary it must yield to the statutory provision. The learned judge at the special term in his opinion says that “ the time honored practice was for the referee to find such facts as he deemed necessary to sustain his conclusions, and to pass upon the requests submitted by the adverse party. Both were printed in the appeal book, and the case was disposed of as if all the findings had been written upon the sheet of paper. This may have been the practice in the City Court of which he was for a long period the honored chief justice, but it does not appear that this method was in vogue in other courts. In Nobis v. Pollock, 17 Civ Proc. Rep., 243-245, the mode of making up the referee’s report is very clearly stated. This case is directly in point and the opinion of the presiding justice succinctly states the practice on this question. An appeal was taken by the defendant from a judgment entered at special term in favor of the plaintiff, in an action foreclosing a mechanic’s lien. Yan Brunt, P. J., said: “ Upon an examination of the case as presented, it appears that there has been no compliance with the provisions of the Code, section 1022, requiring the court upon a trial of the whole issue of fact to state separately the facts found and the conclusions of law. The learned court in this case has apparently filed a decision containing certain facts found and certain conclusions of law. But upon an investigation, in separate parts of the case, Ave find that he has found other facts apparently upon the request of one of the parties, and has not embraced them in his decision which is filed. This is clearly not a compliance Avith the provisions of the Code, and renders it impossible for this court to revieAV the judgment upon a record so imperfectly made up. “ All the findings of fact on which the judgment is founded formed part and parcel of the judgment roll, and it will be seen by reference to section 1023 that the papers which are submitted to the court containing requests to find upon behalf of either part, and upon which the court is bound to rule, form no part of the judgment roll, because the court has a right either to file these papers or to return them to the attorneys, his rulings having been entered therein; and we have the further significant provision that the omission to note these rulings thereon shall not affect the validity of the decision or report; making it apparent that these papers form no part of the judgment and no part of the decision of the court. Therefore, the only purpose which they would serve is as the basis of an exception to a refusal to find. The case must therefore be sent back in order to have the proper findings prepared.” In this opinion Brady and Daniels, JJ., concurred. A later case in the same court reiterates the principles laid down in the one just cited, and the learned presiding justice states more carefully even than in the preceding opinion the conclusion that section 1022 of the Code requires all the facts found by the court or referee to be inserted in the report or decision. This last case is ahnost identical in point of facts to the one at bar. • On trial of the action before the referee the plaintiff and the defendants named each proposed separate findings of fact and conclusions of law, and submitted them to the referee. He marked on the margin the disposition by him of each proposition, and returned the proposed findings to the attorneys of the respective parties, and made a report which did not contain all the findings made by him at the request of the parties. A motion was made to set aside the referee’s report, which was denied and defendants appealed. Van Brunt, P. J., said : “ It is conceded upon the papers submitted upon this appeal that the referee did not include in his report all the facts found by him. This clearly made his report irregular, because by section 1022 of the Code it is provided that the decision of the court or the report of the referee upon the trial of the whole issue of fact must set out the facts found and the conclusions of law. This is an express direction that the facts found must he set out in the decision or report, and the reason for this is apparent, because an appeal may be taken, and such appeal founded upon errors contained in the report itself, viz.: that the conclusions of law do not follow from the facts found by the referee; and, in order that the appellant may bring up this question, it is necessary that there should he contained in the report or decision all the facts found. An inspection of section 1023 reinforces this view, as it is there provided that either party may request findings of fact, and the referee is bound to mark on the margin of the papers submitted his rulings upon such requests, which papers may be returned to the parties, and never enter into the judgment roll, and only come before the court as part of the case, if a case is made and annexed to the judgment roll. Therefore it is apparent from this section also that the facts found by the referee, no matter whether at the request of one side or the other, must he incorporated in this report. This court has repeatedly refused to entertain appeals, where it appears that this provision of the Code has not been complied with. We think, therefore, that the case should have been sent back to the referee in order that he might make a report complying with the provisions of the Code, including therein all the facts found by him. * * * '* An order should be made sending the case back to the referee, in order that he may make a report in which shall be included all the facts found by him.” All concur. Schultheis v. McInery, et al., 13 N. Y. Supp., 685. That the court has power to remit the report or decision for the purpose of adding findings or rendering the document more clear, see 84 N. Y., 285; 39 N. Y. State Rep., 231, and cases just cited. These unanimous opinions of the general term of the Supreme Court definitely settle the method of procedure in that court, and while perhaps not binding, upon this general term, or court, as stated in the opinion of the learned special term judge, they establish very clear and forcible precedents which may be safely followed. It is intimated very strongly that the practice of this court is similar to that in the Supreme Court, by a very recent case decided by this general term in May last. This was an action brought against these same defendants, and the facts appear in the opinion. The court said: “ It is objected as a sufficient cause for reversal that certain findings and conclusions of law, found at the request of the defendants, were omitted from the decision made by the judge. In such a condition of the case there is no subject-matter of an appeal. There is no action of the court which may be reviewed. If the omission were irregular, the defendants might have made a motion for the correction of ' the omission, and they would have a right to appeal from a denial of the motion. In the absence of such a motion and order, the omission appears to be without objection on the part of the defendants, and that evinces a consent that the case proceed and appeal be heard on the decision as made. Judgment affirmed, with costs.” Altmayer v. Met. and Man., 14 N. Y. Supp., 311, 312. The language of the court here is significant, and the clear meaning of the opinion is that these findings and conclusions should have been inserted in the decision in order that a proper case might be made for appeal.

      Olin, Rives & Montgomery, attorneys, and G. L. Rives of counsel, for respondents, argued :—
    This appeal brings up the single question whether Mr. Justice Mo Ad am was right in declining to follow the practice laid down for the Supreme Court by its general term in Schultheis v. McInerny, 13 N. Y. Supp., 684; mem of dec., 59 Hun, 626. On the trial of these actions, before Mr. Hamilton Odell, as referee, the plaintiffs and defendants each proposed separate findings of fact and conclusions of law, and submitted them to the referee. He marked on the margin the disposition, made of each proposition, and returned the proposed findings to the attorneys of the respective parties. At the same time, April 21, 1891, the referee delivered to the attorneys for the plaintiffs his report in each of these actions, made up by himself. It is asserted by the defendants that the reports as made up do not contain all the facts found by the referee at their request; and it may be admitted that this assertion is, in form, correct. There are, in the case of Morgan L. Livingston, 57 requests to find facts and 23 to find conclusions of law; in the case of Julia Livingston, there are 55 requests to find facts and 24 to find conclusions of law; in the case of Silvia Livingston there are 57 requests to find facts and 24 to find conclusions of law; or about 80 requests in each case. Though the three cases are all alike —relating to three contiguous parcels of land—the requests to find are ingeniously confused so as to be different in each case. The very experienced referee who tried these cases, adopted what Mr. Justice McAdam calls in his opinion, a the time honored practice ” of including in his report all such facts as he deemed necessary to sustain his conclusions. He has, so far as we can observe, included every fact found at the defendants’ request which was of the slightest materiality. The result is a clear, compact and comparatively concise report, identical (except as to dimensions, names, amounts, etc.) in each of the three cases. What incoherent, cumbersome and altogether ridiculous documents these would be if the defendants’ motion were granted, will appear to the court if it will attempt the task of reading over the defendants’ requests to find, and imagining their interpolation into the body of Mr. Odell’s well drawn reports. The practical objections pointed out by Mr. Justice Mo Ad am to the rule in Schultheis v. McInerny need not be further insisted on. The only purpose of this motion is to cause delay and confusion. The only argument in favor of granting it is based on the literal wording of sections 1022 and 1023 of the Code of Civil Procedure. Taking all the language together, we respectfully submit that the learned general term of the Supreme Court fell into error in supposing that every word of every request favorably passed on by the referee must necessarily be included in his report. See editor’s note to Nobis v. Pollock, 23 Abb. N. C., 279. No such proposition has as yet been announced—so far as we can learn—by the general term of this court. In Altmayer v. Met. Elev. R’way Co., 38 N. Y. State Rep., 530, decided nearly two months before the cases now at bar, this court (Sedgwick, Ch. J., and McAdam, J.), merely held that if the omission to include certain findings were irregular, a motion to correct the irregularity should have been made, and that the question could not be raised on appeal from the judgment.
   By the Court.—Freedman, J.

In each of the above entitled actions the defendants moved that the report of the referee be vacated and set aside and that the action be sent back to the referee and that he be directed to make a report including all of the facts found by him and all the conclusions of law found thereon. The motions were denied and the defendants appealed.

Each of these actions was the usual action by an abutting owner for an injunction and for damages by reason of the construction, maintenance and operation of an elevated railroad in front of such owner’s premises. By consent of the parties the actions were referred to a referee to hear and determine the same, and they were so tried. On the trial the plaintiffs and the defendants proposed separate findings of fact and conclusions of law and submitted them to the referee. He marked on the margin the disposition made of each proposition, and returned the proposed findings to the attorneys of the respective parties. At the same time the referee delivered to the attorneys for the plaintiffs his report in each action, made up by himself, in which he found that the plaintiffs were entitled to an injunction and to damages.

It is now claimed, as it was claimed on the motions below, that the reports so made up do not contain all the facts found by the referee at the request of the defendants, and that for this reason the reports should have been vacated and set aside and the actions referred back to the referee for a proper report. The claim that the reports do not contain all these facts, is, in form, correct.

The first question then is whether the defendants were prejudiced by the omission.

Each report is complete in itself and appears to comply with the substantial requirements of the Code and the practice heretofore observed. It contains a full statement of facts found, a statement of conclusions of law based thereon, and a direction for the appropriate judgment. There were made by the defendants in the case of Morgan L. Livingston, 57 requests to find facts and 23 requests to find conclusions of law; in the case of Julia Livingston, 55 requests to find facts and 24 to find conclusions of law; and in the case of Silvia Livingston, 57 requests to find facts and 24 to find conclusions of law. Of these many were found as requested, with the remark that they had been so found in the report; others were found with a qualification; still others were simply marked found,” and the remainder were refused. The referee included in his report in each case all such facts as he deemed necessary to support his conclusions of law. Each report contains 20 findings of fact and 8 conclusions of law. The result is a clear, compact and comparatively concise report, identical (except as to dimensions, names, amounts, etc., etc.), in each of the three cases—a practice to he highly commended, unless the law clearly calls for a different one. Though the three cases are substantially all alike—relating to three contiguous parcels of land and the differences relating only to names, descriptions, amounts, etc.,—the defendants’ requests were ingeniously confused so as to be different in each case. After having passed upon them, the referee included in his report of each case all the facts and conclusions of law so found which he deemed material or in any wise calculated to affect the decision.

I have carefully examined those which were omitted from the reports and found that, in view of the law applicable to this class of cases, they are utterly inefficient to work a result different from that which was reached, provided the findings of fact which were stated in the reports are supported by sufficient competent evidence, which latter question cannot be determined at the present time. In no aspect which can be taken can the defendants lose anything on their appeals from the judgments in these cases by reason of the fact that in each case the findings of the referee are written upon two pieces of paper and not one. The rulings as to the omitted findings appear in his notes on the margins of the requests, and the defendants can file them and print them and have them considered as part of their appeal papers. Their appeal may be brought both upon the facts and the law, and, if proper steps are taken, they may at the same time have a review of the order denying their motions to send the reports back, and upon such review obtain the relief to which they may then show themselves entitled.

No prejudice by the omission having been established, the only remaining question is whether the defendants, although not prejudiced, have a strict statutory right to the relief demanded by them on their motions.

Prior to the decisions made by the general term of the Supreme Court of the First Department in Nobis v. Pollock, 23 Abb. N. C., 279, and Schultheis v. McInerny, 13 N. Y. Supplement, 684, it was generally considered and believed that no such right exists. The solution of the question depends upon the interpretation and construction of sections 1022 and 1023 of the Code of Civil Procedure.

Section 1022 prescribes that the decision of the court, or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereon. Sections 267 and 272 of the old Code also provided that the decision or report should contain a statement of the facts found and the conclusions of law separately.

Under the old Code it became well settled that the statement of facts thus required consisted of a statement of the material facts necessary to support the conclusions of law based thereon, and no more, and that no detailed findings were required specifying the particulars of the general conclusions of fact, or explaining the means or processes by which such general conclusions were reached. Avery v. Foley, 4 Hun, 415; Wilson v. Knapp, 42 N. Y. Super. Ct., 25, affirmed 70 N. Y., 596; Beck v. Sheldon, 48 N. Y., 365.

In Pollock v. Pollock, 71 N. Y., 137, the Court of Appeals even held that a decision of the special term consisting of a statement that the court found plaintiff guilty of the adultery as charged in the answer, and of a direction that the complaint be dismissed, was a sufficient compliance with the provision of the Code that the facts and the conclusions of law should be separately found and stated.

Section 1022 of the Code of Civil Procedure has been uniformly interpreted in like manner upon this point, and notably so in Dolan v. Merritt, 18 Hun, 27, and Wesfelman v. Manhattan R. R. Co., 32 N. Y. State Rep., 682.

Under the old Code, however, a practice had sprung up not founded upon any requirement of the Code, but upon a rule. Rule 32 of the general rules of practice in force at that time, permitted a party, after the. report of a referee or the decision of a court, upon the settlement of a case, to present proposed findings of fact, and the judge or referee was thereupon required to pass upon such questions of fact so presented by either party as should be material to the issue. The practice under this rule, in cases where the referee refused to make additional findings, became awkward and inconvenient. No exception to such refusal would lie, and the remedy of the party aggrieved was by motion in court for an order sending back the report with instructions requiring findings upon questions decided to be material. Rogers v. Wheeler, 52 N. Y., 262. As shown by Finch, J., in Gormerly v. McGlynn, 84 N. Y., 284, this inconvenience was sought to be remedied in the revision which produced the Code of Civil Procedure. By section 993 it was provided that a refusal to make any finding whatever, upon a question of fact as to which a request was reasonably made by either party, is a ruling upon a question of law. If the change had stopped here, its only effect would have been that a new and additional remedy would exist in the case of a refusal to make a finding upon a material question of fact. But the change went further. By section 1023 it was provided as follows : “ § 1023. Before the cause is finally submitted to the court or the referee, or within such time afterwards, and before the decision or report is rendered, as the court or referee allows, the attorney for either party may submit, in writing, a statement of the facts, which he deems established by the evidence, and of the rulings upon questions of law, which he desires the court or the referee to make. The statement must be in the form of distinct propositions of law, or of fact, or both separately stated; each of which must be numbered, and so prepared, with respect to its length, and the subject and phraseology thereof, that the court or referee may conveniently pass upon it. At or before the time, when the decision or report is rendered, the court or the referee must note, in the margin of the statement, the manner in which each proposition has been disposed of, and must either file, or return to the attorney, the statement thus noted; but an omission so to do does not affect the validity of the decision or report.”

In enacting this section the legislature rendered Rule 32, as it then stood, inoperative, and determined that thereafter all requests should be made before the decision or report is rendered, and that the requests so made should be passed upon at or before the time when the decision or report is rendered. I cannot find that this new section worked any change in the law, as it then stood, as to the actual incorporation of findings made at the request of either party into the decision or report. While the requests must now be made before the rendition of the decision or report, they may be passed upon either at or before the time when the decision or report is rendered. Under the familiar rule that, in the interpretation or construction of a statute, effect must be given, if possible, to every word of the statute, the word “ at ” cannot be ignored. On the other hand, pursuant to the requirements of the preceding section the decision or report, when rendered, must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereon. It must be complete in these particulars. How then can it be held that additional facts found at the request of either party at the very moment of the rendition of such a complete decision or report must appear in such decision or report ? I cannot come to such a conclusion and am firmly convinced that, if the legislature had intended to work such a result, language would have been employed which, in unmistakable terms, disapproved of the prevailing practice and prescribed the new method to be pursued.

In a note appended by Mr. Austin Abbott to the report of the case of Nobis v. Pollock, 23 Abb. N. C., 279, the learned annotator arrived at the following conclusions and stated them so well that, in view of their great importance, I shall quote them in full, viz.: “ Note on the effect of findings of fact. The conflict in the cases, and the diversity of practice on this subject, is noteworthy. Under the new procedure, in which, at law as well as in equity, all defences must be pleaded together in one answer, and in which cross claims are set up by answer instead of cross bill, the cases are very frequent in which complex issues are presented for trial, all of which are material to be tried, But any one or less than all are sufficient to determine the cause. The object of the Code in its present form seems to be to separate the findings which are material to support the conclusions of law and resulting judgment, from those which are not material for that purpose, although they were material for the purposes of the trial; and to require the statement in one decision of all that go to support the judgment, at the instance of whatever party made, while those which are made on questions not material to the judgment are to be left in the judge’s allocatur upon counsel’s requests, so that the refusal to find any fact material to the judgment may be reviewed by the party prejudiced thereby. This accords with the principle that a finding or refusal not material to support the judgment ought not to be embodied in the decision in such manner as to be apparently res judicata, for a successful party cannot appeal from a judgment in his own favor merely for the purpose of getting rid of a finding against him on a point which proves not material to the judgment.” The conclusions arrived at-by Mr. Abbott are correct as far as they go. It may be well, however, to continue the discussion a little farther, and to point out that under the Code of Civil Procedure, as it now stands, it is, in most cases, more expedient to refuse all requests upon immaterial points, than to find, the immaterial facts. Formerly, as I have already shown, an exception did not lie to a refusal to make a subsequent additional finding under Rule 32, but now a refusal to make any finding whatever upon a question of fact, where a request was seasonably made by either party, is, under § 993, a ruling upon a question of law within the meaning of § 992, and as such it may be excepted to under § 992 and reviewed pursuant to § 1346 upon the appeal from the judgment. Upon such appeal the exception fully presents the question whether upon the whole evidence the finding should or should not have been made, and such question must be determined with due regard to the rights of the parties. Upon such appeal any order may also be reviewed refusing to send the case back to the referee for further findings, provided the notice of appeal asks for a review of the order (see §§ 1301 and 1316). The same rule prevails both at general term and in the Court of Appeals, for in a case tried by a judge without a jury or by a referee, both may review the facts as well as the law, and the question whether a certain request for a finding of fact whicji was refused should or should not have been complied with, will always be determined, if raised by an exception to the refusal, with reference to the materiality of the fact involved and its tendency to vary the result. No advantage can be derived, therefore, from findings upon immaterial facts. If a fact does affect the result in the slightest degree, its proper place is in the body of the decision or report; but if, under the law as it stands, it cannot affect the result in any way, it should not be found at all.

These remarks are added because of late years a tendency has manifested itself to request detailed findings of all the particulars which go to make up the general facts necessary to be stated, and even of the evidence thereof and of the means and processes by which the general facts are arrived at, and because in many instances it has been found that there is too much willingness and readiness to comply with such useless requests and that consistency becomes sometimes impaired in consequence thereof. The three cases at bar afford a good illustration. In each the substantial controversy turned upon only two points, namely, the loss of rental value during a certain period, and the permanent depreciation of the fee value, and yet in each case the defendants presented at least 55 requests to find facts and 23 requests to find conclusions of law. Such practice must he discouraged. It puts upon trial judges and referees a work of supererogation which should not be imposed upon them and which serves no useful purpose. While, therefore, it may be technically the duty of a judge or referee to pass upon such requests, that duty will he fully performed by a specific denial of each and every one of them demanding a fact to be found which either is immaterial or has been already substantially covered by the findings embodied in the decision or report.

I think I have now sufficiently demonstrated that the additional facts which may be found pursuant to the direction of § 1023 need not he inserted in the decision^ or report, if they are immaterial or if they have been already substantially covered by the findings contained in the decision or report, and I close with a reference to the concluding sentence of § 1023, by which it is expressly provided that an omission on the part of a judge or referee to comply with the directions of said section does, not affect the validity of the decision or report. No rule of court can, therefore, he made inconsistent with the provisions of that section, for the power to make rules is limited to such rules as are not inconsistent, but in harmony with, the provisions of the Code of Civil Procedure. Gormerly v. McGlynn, 84 N. Y., 284.

For the reasons stated the conclusion is unavoidable that, while the court does possess the power to send a case back to the referee for further findings upon material points not covered by the report, or to have findings made specially at the request of either party incorporated into the report, no error was committed by the learned judge below in refusing to send back the cases at bar.

The conclusion reached finds strong support in the opinion of Earl, J., in Redfield v. Redfield, 110 N. Y., 671, and the opinion of Ruger, Ch. J., in Green v. Roworth, 113 N. Y., 462. Both judges recognize, under the practice prescribed by the Code of Civil Procedure, the continued existence of the two classes of findings hereinbefore discussed. They speak of the findings contained in the body of the decision or report as formal or general findings, and of the additional findings made at the request of either party at the time of the rendition of the decision or report, as special findings, and they lay down the rule that, in case of any conflict between the formal and special findings, the courts are hound to attempt to reconcile them.

The order should he affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., and Dugro, J., concurred.


source: Caselaw Access Project

author: “McAdam, J. By the Court.—Dugro, J.

license: Public Domain

text:
    WILLIAM F. ERVING, Respondent v. THE MAYOR, etc., OF THE CITY OF NEW YORK, Appellant.

      Action to recover $1,000 deposited by the plaintiff with the commissioner of public works to accompany a bid or proposal for regulating and grading the first new avenue west of Eighth avenue. Statutory grounds for forfeiture of such a deposit, and notices required of an award of the contract to such depositor, etc., etc.

    Plaintiff claimed in his complaint that the $1,000 had been withheld from him on the ground that it had been forfeited to the defendant, but that it had never been forfeited because there had been no award of the contract to him, and no written notice of five days, as required by the statute, had been given to him that any award had been made to him. Defendant’s answer denied the allegations of the complaint that there had been no award and no notice, etc., and plaintiff moved at special term to strike out the defence contained in the answer as sham, and to overrule the answer as frivolous, and for judgment, etc. Upon the hearing and arguments of these motions at special term, an order was entered sustaining the motions, and judgment was entered for plaintiff.

      Held, that the five days’ written notice that the contract had been awarded to plaintiff was not given to him. The section of the statute creating the forfeiture is penal in its nature and must be strictly interpreted. Forfeitures are not favored and courts adhere to the precise words of the conditions to prevent a forfeiture. If the plaintiff’s bid met all legal requirements, it became the duty of defendant’s agents to formally award the contract to the plaintiff and give him the five days’ written notice of such award, and if the sureties of the plaintiff were not satisfactory to the comptroller, he should have notified the plaintiff and afforded him a reasonable opportunity to furnish others. The plaintiff not being legally notified of the award, and not notified of the rejection of his sureties and afforded an opportunity of furnishing others, has not been put in default, nor has the defendant by forfeiture or otherwise become the owner of the plaintiff’s deposit.
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.

      Decided November 10, 1891.
    Appeal from order of special term striking out certain defenses contained in the answer as sham, and also overruling the answer as frivolous, and directing judgment for the plaintiff; and also an appeal from the judgment in favor of the plaintiff, entered upon the direction of said order.
    The facts in this case fully appear in the opinion of the judge at special term, as follows :
   “McAdam, J.

The defendant advertised in writing for bids for regulating, grading, flagging, curbing and guttering the first new avenue west of the Eighth, between One Hundred and Forty-fourth and One hundred and Fifty-fifth streets, and requiring that each ‘bid be accompanied by a certified check in a sum not less than five per centum of the amount of the bond required, Avkich was $20,000. The plaintiff was the loAvest bidder, and the commissioner of public works transmitted the bid, bond and check to the comptroller for the purpose of having the sufficiency of the sureties determined. The defendant alleges that the plaintiff was apprised of the fact that he was the loAvest bidder, and that such apprisal was the award of the contract to him ; that the sureties furnished Avere examined by the comptroller, found not to be satisfactory and Avere rejected, and that the plaintiff neglected to present other sureties, whereupon the work was re-advertised and let at a higher price than the original bid of the plaintiff, whereby, and in consequence thereof, the deposit of $1,000 was forfeited by force of the provisions of section 65 of the Consolidation Act of 1882. Whether there was such a forfeiture is the question to be determined.

The award contemplated is more than an apprisal that the plaintiff is the lowest bidder; it is a quasi-judicial act, formal in its character, involving a determination by the officials of Ml the facts in the nature of conditions precedent. East River G. L. Co. v. Donnelly, 25 Hun, 614; aff’d 93 N. Y., 557; People v. Gleason, 121 N. Y., 631.

The act (Laws of 1882, chap. 410, § 64) provides: That if the lowest bidder shall neglect or refuse to accept the contract within five days after written notice that the same has been awarded to him, or if he accepts but does not execute the contract and give the proper security, the work shall be re-advertised and re-let. The five days’ written notice required by this section was not given. Section 65 provides that if the lowest bidder shall refuse or neglect, within five days after due notice that the contract has been awarded to him to execute the same, the amount of deposit made by him shall be forfeited to and retained by the city, as liquidated damages for such neglect or refusal, and shall be paid into the sinking fund of the city; but if the lowest bidder shall execute the contract within the time aforesaid, the amount of his deposit shall be returned to him.

The due notice referred to in this section is the written notice referred to in the preceding section.

" The sections referred to constitute a revision of the act of 1881 (chap. 147), designed to protect the city from loss that might occur by the refusal of the lowest bidder to execute the contract, in the manner and form required by law, after the award thereof by the corporate authorities.

" The section creating the forfeiture is penal in its nature, and is to be strictly interpreted.

Forfeitures are not favored, and courts adhere to the precise words of the conditions to prevent a forfeiture.

The plaintiff submitted his bid in good faith, and earned all the consideration the nature of the transaction entitled him to receive. If the bid offered did not meet legal requirements, it might have been disregarded and the contract awarded to the next bidder whose bid satisfied the law. If this had been done the plaintiff would have been entitled to the return of his deposit, for he was not the lowest bidder in legal contemplation.

“ If the plaintiff’s bid was the lowest and met legal requirements, then it became the duty of the defendant’s agents to formally award the contract to the plaintiff, and give him the five days’ written notice of such award. If the sureties were not satisfactory to the comptroller, he should have notified, the plaintiff, and afforded him a reasonable opportunity of furnishing others.

It was not intended to enforce forfeiture under the section cited, except where it became necessary to protect the interests of the city.

“ There should be no loss to the plaintiff without a reasonable possibility of whatever gains the contract might have afforded. The defendant could acquire title to the plaintiff’s money only by a literal compliance with all the requirements of the statute necessary to produce such a result.

The determination of the questions left to the decision of the authorities must not be arbitrary or capricious, but judicial in its character and fair.

The plaintiff was not notified of the rejection of his sureties, and was not afforded an opportunity of furnishing others, so that the plaintiff has not been put in default, nor has the defendant by forfeiture or otherwise become the owner of the plaintiff’s deposit. It has been duly demanded, and the plaintiff is entitled to its return with interest from the time of such demand. These views do not conflict with those expressed in Moore v. Loew. Ms. opinion, Com. Pleas., Dec. 11, 1886; affirmed by general term and by the Court of Appeals, without opinion, 105 N. Y., 666. In that case the contract was legally awarded to Moore, and after his sureties were rejected he refused to furnish others in their place. There was a clear forfeiture of the deposit in that case. Not so here. The material facts are admitted and there is no issue for the trial term.

Richard J. Morrison, attorney and of counsel, for respondent.

William Clark, counsel to the corporation, and Charles Blandy of counsel, for appellant.

“ It follows that the plaintiff is entitled to judgment for $1,000, the amount of the deposit with interest as aforesaid, and the motion therefor must be granted, with costs.”

By the Court.—Dugro, J.

The judgment and order appealed from are affirmed upon the opinion of the learned judge below.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: Per Curiam.

text:
    LIZZIE P. SANFORD, Respondent v. NATHAN H. SANFORD, Appellant.

      Allowance for support of children in case of an absolute divorce, when once fixed in the final judgment or decree it cannot.be increased.

    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.

      Decided November 10, 1891.
    Judgment for absolute divorce was entered in this action October 5, 1888, in favor of the respondent, upon the ground of adultery, awarding her $800, payable quarterly, as alimony, and also the custody of their two children, and. $250 each, payable quarterly, for their support, maintenance and education. These amounts, making $1300 annually, have been paid to the respondent. In June last, the respondent made application to this court to have the amounts allowed to the children increased, and his honor Justice Me Adam granted her application, increasing the allowance to each child $150. From this order, granting such increase, this appeal is taken.

      B. R. Champion, for appellant, argued:
    The respondent insists that the court has such authority under sec. 59, title 1, Chap. 8, Part 2 of the Revised Statutes, and the special term took that view of the case, citing Erkenbach v. Erkenbach, 96 N. Y., 463, and Washburn v. Catlin, 97 N. Y., 623. With due respect, we think the special term is in error when it says, “ the provision for the support and education of the children may be altered to suit their necessities, and this, whether the action be for limited or absolute divorce.” The Code, as we have seen, gives no such authority. Does the statute ? Section 59, aforesaid, in force when the Code went into effect, gave the court power, in an action where the wife was plaintiff, to make such order for the custody, care and education of the children, as might seem necessary and proper, either before or after judgment, and whether the judgment was for a divorce or separation. The Code, § 177Í, embraces this provision, but limits the making of such order, after judgment, to cases of separation only. Now, chapter 245 of the Laws of 1880 repealed section 59 aforesaid. It reads : “ 4. The following portions of chapter eighth: All of title first, except article first thereof and section 49 thereof. Section 49 is in article 4th of title 1, and is embraced in that portion repealed. If the intention of the legislature was not to repeal § 59, why was the provision at the end of § 1771 of the Code, ‘ Where the action was brought as prescribed in article Third of this title (action for a separation) the court may, by order, at any time after final judgment, annul, vary or modify such a direction,’ inserted at all ? It uses the same terms as are used in § 59. But we may be told that § 3 of the repealing act (chapter 245, Laws of 1880 aforesaid) preserves the right given by § 59. If preserved at all, it is by the following provision: It does not render ineffectual, or otherwise impair any proceeding in an action or a special proceeding had or taken pursuant to law before this act takes effect; and where the repeal of a provision specified in that section would render ineffectual, or otherwise impair such a proceeding, that provision must be deemed to remain unrepealed for the purpose of avoiding such a result.” Now we insist that this provision only applies to and relates to cases pending of determined before this repealing act was passed, or at least, before it went into effect, and has no reference or application to cases arising afterwards. Such cases are to be conducted under the Code exclusively.

      A. Britton Havens, for respondent, argued :
    The propriety and justice of granting this application were abundantly shown by the proofs before the court.
    The power of the court to grant such an application can be found in the well-recognized doctrine that courts always have control over their own proceedings and can vary or modify their judgments to accomplish what is just. Courts have always control over their own proceedings, and, where there is no express prohibition, may deal with them so that what is right and just may be reached. In the Matter of the City of Buffalo, 78 N. Y., 370, and cases cited. The cases in which this power has been exercised are very frequently reported. See, for example: Prior v. Prior, 15 Civ. Pro. Rep., 436; Emmerich v. Hefferan, 97 N. Y., 619; Matter of Accounting of Hawley, 36 Hun, 258 (reversed on other grounds, 100 N. Y., 206). See also Diets v. Farrish, 43 N. Y. Super., 87, in which case it was said that the court has power independent of statute to modify, vacate or set aside its orders and judgments, and may exercise it in behalf of one in whose favor the order or judgment was entered. It is plain, therefore, that the order granted herein may be regarded as a variation or modification of the original decree in the action, or as an order entered at the foot of the decree, and as made in pursuance of the well-recognized authority of courts to modify their own judgments; and that this was a just and proper case for the exercising of that power, we submit, has already been made to appear.
    The power, however, to make further provision for the custody, care and education of the children of the marriage after a final decree is expressly given in section 59, title I., chapter VIII., part II., of the Revised Statutes. The section referred to reads as follows : “In any suit brought by a married woman for a divorce, or for a separation from her husband, the court in which the same shall be pending may, during the pendency of the cause, or at its final hearing, or afterward, as occasion may require, make such order as between the parties, for the custody, care and education of the children of the marriage, as may seem necessary and proper, and may at any time thereafter annul, vary or modify such order.” It is true that it is well settled that the courts in this state have no common law jurisdiction over the subject of divorces, and their authority is confined altogether to the exercise of such express and incidental powers as are conferred by the statute. Erkenbach v. Erkenbach, 96 N. Y., 463. And it must likewise be conceded that there is no express provision in the Code of Civil Procedure for the making or modification of orders' or judgments providing’ for the payment of alimony, or of sums awarded for the maintenance and support of children after a decree is entered, although an exception is made in the case of actions for a separation, as it is provided in section 1771 of the Code that in such actions the court may by order at any time after final judgment annul, vary or modify the directions given for the custody, care and education of the children. It is also true that chapter 245 of the laws of 1880 repeals that part of the Revised Statutes which contains the section we have quoted, but the Court of Appeals has held that the right given by the section in question was preserved by section III. of the repealing act. See Washburn v. Catlin, 97 N. Y., 623. In the case last cited just such an application was approved as has been granted in this case; and in the case of Erkenbach, v. Erkenbach, already cited, while it was held that no order could be made or modified after decree, in respect to alimony, it was at the same time determined that further provision could be made for the care, custody and education of the children of the marriage under the section already cited. The Erkenbach case is cited and approved in Washburn v. Catlin (supra), and although these cases were decided in 1884, that is, four years after the repealing act took effect, in the opinion in the first mentioned case (96 N. Y., 466) it is expressly stated that the result reached seems also to conform to the existing practice as provided for by sections 1766, 1769 and 1772 of the Code of Civil Procedure, and would make the practice in respect to the subject uniform, not only as to future, hut as to existing decrees. It is true that it does not appear from the opinions in the two cases in the Court of Appeals which we have just cited which one of the fourteen subdivisions contained in section III. of the repealing act of 1880 saves section 59 of the Revised Statutes, hut it is apparent that that purpose is effected for either of the cases cited, as well as for the case at bar, by the qualifications mentioned in subdivisions I. or II. of section III. Subdivision I. provides that the repeal affected does not render ineffectual or otherwise impair any proceedings in any action or special proceeding had or taken pursuant to law when this law takes effect. And subdivision II. provides that it does not affect any lawful act done, or right, defence or limitation lawfully accrued or established, before this act takes effect; and every such right or act remains as valid and effectual as if this act had not been passed. The cases in 96 and 97 N. Y. might have come within either of these provisions, but it is plain that the case at bar falls directly within the provisions of the second subdivision, which provides that the repealing act does not affect any right lawfully accrued or established before this act takes effect, and that every such right remains as valid and effectual as if the act had not been passed. Now it will be at once conceded that there is no right more sacred or more fundamental known to the law than that of the right of the minor child to be supported by its parent, and particularly by its father. Bl. Com., 448; 2 Kent Com., 190; Schouler’s Domestic Relations, page 318. And the principle is clearly established (it is said in Schouler’s Domestic Relations, page 322), both in England and America, that the father must, if he can, maintain his infant children, whatever their expenses may be, and no allowance will be made him for that purpose out of their property while his own means are adequate for their support. The principle is equally elementary, that the right of the child to be supported by its father accrues at the birth of the child. It follows therefore that the children in the case at bar having been born before the statute took effect, to wit, in October, 1880, their right to he supported by this defendant was a right which accrued while section 59 of the Revised Statutes was in existence and was clearly exempt from the provisions of the repealing act by subdivision II. of section III. of that act, to which we bave referred. It may be observed, therefore, in conclusion, that while the legislature may have failed to provide in its new system of procedure (contained in the Code), for any method of increasing the allowance for the support of children of the marriage in the event of a change in circumstances, after a decree of absolute divorce, that that salutary provision in the Revised Statutes affecting this purpose was clearly preserved for children whose right had accrued before that act took effect which swept away the old system of procedure in matrimonial cases.
   Per Curiam.

In 1888 the this action for divorce a vinculo and obtained judgment. The judgment provided that the defendant pay certain money for the support and education of children of the marriage. In 1891 the application below was made for an order that the defendant pay further money for the support of the children.

It is admitted that the respondent was entitled to the order only if § 59, tit. 1, ch. 8, pt. 2, Revised Statutes [2d ed.], 154 (148) is to be applied to the case. That section would permit the making of such an order after judgment. The section has been repealed by ch. 245, Laws of 1880, with saving provisions. And it is argued that section 3 of the repealing act saves from the effect of repeal cases like the present. The 1st subdivision declares that the repeal does not render ineffectual or otherwise impair any proceeding in an action or special proceeding had or taken pursuant to law before this act takes effect. This action was begun in 1888. The action of Erkenbach v. Erkenbach, 96 N. Y., 463, and Washburn v. Catlin, 97 N. Y., 623, were begun before the repealing act of 1880. There was no intimation of the particular subdivision of section 3, that saved the proceedings, but the first subdivision was so clearly applicable that it is not to be deemed that there was any adjudication as to subdivision 2, that provides that the repeal does not affect any other lawful act done, or right, defence or limitation lawfully accrued or establisted before this act takes effect.” Neither the respondent nor the children had any right within the meaning of the section. The section means not a general or political right but something which may be enjoyed and as to which facts exist which give a present right of enforcement. At the time of the repealing act the children were not entitled to the support they claimed under the application below. By presumption the defendant had fulfilled his duties, and there was no right of action against him.

The order should be reversed and the motion below denied, with ten dollars costs.


author: By the Court.—McAdam, J.

text:
    ANGELINA T. ARTHUR, Impleaded, etc., Appellant v. WILLIAM SCHRIEVER, et al., Respondents.

      Practice—Motion for vacation of judgment and order for extra allowance because of their entry after the death'of one of the plaintiffs who was also the attorney of record for plaintiffs.

    The Verdict having been rendered before the death of the attorney of record, and one of the x>laintifis, Held, that the final judgment for costs, etc., could be entered nunc pro tunc, as of the day on which the verdict was rendered and the motion for an extra allowance made.
    Before Freedman, P.J., McAdam and Gildersleeve, JJ.

      Decided, December 15, 1891.
    Appeal from order made at special term denying a motion made by the appellant to vacate the judgment entered herein on April 13, 1891, and the order granting an allowance of $500 to the defendants.

      Smith & Perkins, attorneys, and Edward C. Perkins of counsel, for appellant.

      Johnston & Johnston, attorneys, and Edward W. S. Johnston of counsel, for respondent.
   By the Court.—McAdam, J.

The action was tried March 25, 1891, and resulted in a verdict for the defendants. Upon the coming in of the verdict, the defendants’ counsel moved for an allowance in addition to costs. The trial judge entertained the application and reserved his decision thereon. On March 28, 1891, James Clinton Bolton, one of the plaintiffs and the attorney of record for both plaintiffs, died. On April 1, 1891, the trial judge (having no knowledge of the death) decided the pending application, and granted the defendants an allowance of $500. The death of Mr. Bolton did not invalidate the decision. The verdict was rendered before the death of Mr. Bolton, and eo instanti et ipso facto, the defendants’ right to costs (of which the allowance was part) became absolute. The defendants were not to suffer through the court’s delay. It is by no means unusual,” says Lord Kenyon in Pearson v. Rawlings, 1 East, 405, to make entries of judicial acts nunc pro tunc.” And the reason is given in Crispe v. The Mayor of Berwick, Vent., 90, there being no default in the party, hut a delay which came by the act of the court.” So in Craven v. Hanley, Barnes, 255, it is said, the party must not suffer by the court’s taking time to consider.” In Lure v. Rest, 10 Mod., 30, a writ of inquiry was executed, and before the entry of judgment, which was delayed by act of the court, the plaintiff died, and it was held that having delayed the entry of judgment, it should be entered up as of the proper term. And so where a party dies after an appeal has been argued and submitted, the judgment thereon may he entered nunc pro tunc, as of a day before the death. Beach v. Gregory, 2 Abb., 203, affd. 3 Ib., 78; Bergen v. Wyckoff, 1 Civ. Pro. R., 1. And to the same general effect are numerous other authorities. It is not claimed that the allowance was unauthorized or excessive in amount, merely that the order was for the reasons stated irregularly made.

On April 13, 1891, an order was made permitting the defendants to enter judgment nunc pro tunc as of March 25, 1891, the day on which the verdict was rendered and the motion for an allowance made.

Upon the authority of this order, and the provisions of § 763 of the Code, which permits a party having a verdict in his favor to enter final judgment thereon, notwithstanding the death in the interim of the defeated party, the defendants entered their judgment. The costs were taxed without notice (Code, § 3264). On May 13, 1891, Smith & Perkins served notice of appearance, and the costs were re-taxed on notice to them. Jurisdiction was preserved, and if as claimed by the plaintiffs’ attorneys, the defendants should have delayed further proceedings after the verdict, until a new attorney was appointed in place of Mr. Bolton (Code, § 65). The failure to observe that provision was at most a departure from prescribed practice and constituted an irregularity merely, which was obviated by the subsequent proceedings had in reference thereto. First, we have the notice of re-taxation of costs with an admission of due service on Smith & Perkins endorsed thereon, and at the same time was served a copy of the judgment previously entered. Next, we have the application of the plaintiffs to set aside the judgment and we have the action of the court thereon, June 1, 1891. The record both as to parties and attorneys being at that time complete, the court could certainly then have acted upon any application the exigencies of the case required. If the proceedings taken between the rendition of the verdict and the appointment of Smith & Perkins as attorneys for the plaintiffs constituted a departure from the practice prescribed by section 65 of the Code, the irregularity was one which could have been corrected at the hearing of the motion argued on June 1, 1891, when the record as to parties and attorneys was complete. This being so, the defendants might have invoked the application of the rule which allows a party opposing a motion to amend the defects complained of, without a new motion on his part, when the amendment proposed is proper in itself, and the court can see from the nature of the case that no new facts can be presented to defeat it, Spaulding v. Spaulding 3 How., 302; Hawley v. Bates 19 Wend., 632; Whaling v. Shales, 20 Ib., 673, and kindred cases. To have vacated the judgment, and the next minute reinstated it, would have worked no benefit to the plaintiffs, and courts do not encourage such circumlocutory practice. The denial of the plaintiffs’ motion was tantamount to a new direction that the judgment be entered nunc pro tunc as of March 25, 1891, the day on which the verdict was rendered.

No rights have been lost by the plaintiffs and no benefits gained by the defendants.

The judgment has been appealed from by the plaintiffs, so that the questions presented here are purely technical and without substantial merit.' It follows that the order appealed from must be affirmed, with costs.

Gildersleeve, J., concurred.


author: By the Court.—Gildersleeve, J.

text:
    GEORGE V. SIMS, et al., Respondents v. EDWARD L. BONNER, et al., Appellants.

      Security for costs, defendant's right to demand same under section 3208 of the Code, absolute unless defendant waives that right by laches, and if so waived it becomes discretionary with the court to grant the motion upon defendant's satisfactory explanation of his delay.

      Held, in the case at bar, that the defendant was not entitled to the security demanded.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided, December, 15, 1891.
    Appeal from an order denying motion to compel the plaintiff, George V. Sims, to file security for costs.

      Charles W. Gould, attorney, and William A. Shortt of counsel, for appellants.

      Holmes & Adams, attorneys, and Artemas H. Holmes of counsel, for respondents.
   By the Court.—Gildersleeve, J.

It is well settled that defendant’s right to demand security for costs, under section 3268 of the Code, from a non-resident plaintiff, is absolute, unless defendant waives that right by laches ; in which case it becomes discretionary with the court to grant the motion, upon defendant’s satisfactory explanation of his delay. See Buckley v. Gutta Percha Co., 3 Civ. Pro. R., 428; Churchman v. Merritt, 50 Hun, 270; Wood v Blodgett, 15 Civ. Pro. R., 114; Robertson v. Barnum, 29 Hun, 657; Healy v. The Twenty-third Street Railway Co., 1 Civ. Pro. R., 15; Abel v. Bradner, 15 Ib., 241; Kleinpeter v. Enell, 2 Ib., 21; Ryan v. Potter, 4 Ib., 80. It has also been held that if the plaintiff was a non-resident at the commencement of the action, he is not excused from giving security for costs by subsequently becoming a resident. Ambler v. Ambler, 8 Abb., 340. In the present case, assuming the plaintiff Sims was a non-resident of the State at the time of the commencement of the action, of which there seems to be some doubt, was the defendant guilty of laches in making his motion for security ?

There is no very well defined rule as to what constitutes laches in a case of this kind. The Court of Appeals, some years ago, held that the motion for security for costs may be made at any time before trial. Gedney v. Purdy, 47 N. Y., 676; but the majority of more recent decisions have held that the motion should be made before the answer is served, Stevenson v. N. Y., L. E. & W. R. R. Co., 14 Civ. Pro. R., 384; Robertson v. Barnum, supra; May v. Power, 2 Edw., 294; Weber v. Moog, 12 Abb. N. C., 108. In most of the more recent authorities, the doctrine is laid down that the defendant must act promptly, or he waives his absolute right to security for costs under section 3268 of the Code, and it then becomes discretionary with the court to grant the motion. Hayes v. The Second Avenue R. R. Co., 4 Civ. Pro. R., 84; Buckley v. Gutta Percha Co., supra, and cases above cited. In the case under consideration, the summons was served on December 19, 1890 ; the defendants appeared on January 7, 1891; the time to serve the complaint was extended from time to time until it was finally served on May 9, 1891, and the defendants’ time to answer was extended to August 1,1891. The order to show cause why security for costs should not be given was obtained on July 24,1891, and the motion was finally argued on August 7, 1891. We find no claim that defendant was not aware of the fact, if fact it be, that the plaintiff was non-resident from the very first. Under these circumstances, the defendant forfeited his absolute right, and it became discretionary with the court to grant the motion.

The addition of two, presumably resident, plaintiffs, also affects adversely the defendants’ claim. The action was commenced in the name of George Y. Sims alone, who, as the defendant insists, was then a non-resident; subsequently, on April 13, an order was entered making Gulliver and Ellen T. Sims additional plaintiffs, both of whom, in the absence of any claim to the contrary, must be presumed to be residents. Fisher v. Charter Oak Co., 14 Abb. N. C., 32; afterwards, and on July 24, the defendant makes his motion for security. There were then at least two resident plaintiffs, and the defendant must take the case as it stood when he made his motion. Consequently, under section 3270 of the Code, he was not entitled to the security demanded.

For the reasons above indicated, the order appealed from is affirmed, with costs.

Freedman, P. J., and McAdam, JJ., concurred.


text:
    ELLA B. TABER, Appellant v. EDWARD L. TABER, Respondent.

      Dismissal of complaint for want of prosecution in an action for a separation.

    This action, was begun March 26, 1891. Defendant was arrested on that day on proofs that he was about to leave the State, and was held to bail and subsequently surrendered by his bondsmen, to the custody of the sheriff, on the 29th day of April, 1891, and since that time has been in Ludlow street jail. The answer was served April IS, 1891, and after several] extensions of time to reply, a reply was served July 2, 1891. The cause was not noticed for trial for the October or November terms, and younger issues have been tried in their regular order on the calendar before this motion to dismiss was made. The plaintiff claimed that defendant was in contempt for non-payment of alimony, ordered by the court, and that she has not the means to prosecute the action, etc., and defendant being in contempt, etc., is not in a position to move to dismiss the complaint.

      Held, that defendant is in custody by the surrender of his bondsman and is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt, and the motion to dismiss presented the usual questions on such a motion, with the circumstance in favor of the moving party, that he has been in prison seven months, with a strong probability that he must remain there unless relieved by the trial and determination of this action. It was discretionary with the court to grant or refuse this motion; and an appellate tribunal will not interfere except in a case where the discretion has been abused or improperly exercised, and, in the case at bar, it was not so abused or exercised.
    Before McAdam and Gildersleeve, JJ.

      Decided December 15, 1891.
    Appeal from order granting defendant’s motion to dismiss the complaint for neglect to prosecute the action unless plaintiff notices the cause for trial at the December term, and proceeds to trial.

      Edward Grosse, for appellant.

      Isaac Y. Miller, for respondent.
   By the Court.—Gildersleeve, J.

This action was for a separation, and was begun on March 26, 1891. The defendant was arrested on that day, on affidavits setting forth his alleged intention of leaving the State. He was held to bail, and subsequently surrendered by his bondsmen, on the 29th day of April, 1891, to the custody of the sheriff; since which time he has been in Ludlow street jail. The answer was served on the 15th of April, 1891, and the plaintiff, after obtaining a number of extensions, served a reply on the 2d day of July. The case was not noticed for trial, nor placed upon the calendar for the October or November terms, and younger issues had been tried in their regular order on the special term calendar of this court before this motion to dismiss was made.

The plaintiff gave, as a reason for her neglect to bring the action to trial, the fact that the defendant has neglected to comply with the order of the court requiring him to pay alimony and counsel fee, and that she has not the means to prosecute her action. The learned counsel for the plaintiff urges in his brief that the defendant, being in contempt for non-payment of alimony due April 20th, was not in a position to move to dismiss the complaint. This position cannot be maintained. The defendant is in custody because he was surrendered by the bondsmen who became his surety at the time of his arrest upon the ground, as was alleged, that it was defendant’s intention to leave' the state. He is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt.

The motion herein, therefore, presented the usual questions arising upon motions to dismiss for want of prosecution, with the aggravated circumstance in favor of the moving party that he had been seven months in prison, with a strong probability of being obliged to remain there for the balance of his life, unless relieved by the trial and determination of this action.

Section 822 of the Code provides that where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants, against whom a separate judgment may be taken, the court may, in its discretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly.” Rule 36 of the General Rides of Practice provides that defendant may make the motion to dismiss, under said section 822 of the Code, at any time after younger issues shall have been tried in their regular order; ” and it further provides that “ if it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term or circuit.”

This section of the Code, supplemented by this rule, makes it discretionary with the court to grant or refuse the motion, and to impose such terms as it thinks proper; and an appellate tribunal will interfere only when the discretion has been abused or improperly exercised. James v. Shea, Supreme Court, General Term, First Department, Davis, P. J., 2 Civ. Pro. R., 358.

In the case at bar, we do not think that the special term either abused or improperly exercised its discretion.

The order appealed from is modified by allowing plaintiff to notice the cause for the January term, instead of the December term, as provided in the order, and as thus modified, is affirmed, with ten dollars costs.

McAdam, J., concurred.


text:
    WILLIAM H. CROSSMAN, et al., Respondents v. THE UNIVERSAL RUBBER COMPANY OF NEW YORK, Appellant.

      Concurrent remedy—Effect of proceedings in another State.

    The defendant is' a domestic corporation having its factory located in the State of New Jersey. The plaintiffs held certain promissory notes given by defendant for goods sold to it by plaintiffs. Before the maturity of said notes, plaintiffs instituted proceedings in the coiu't of chancery of New Jersey, had the defendant adjudged insolvent and a receiver appointed. Plaintiffs also instituted an attachment suit in the supreme court of New Jersey before the notes, were due. While these proceedings were still pending, and after the maturity of said notes, plaintiffs commenced this action upon one of said notes. The defendant set up the pending of the proceedings in New Jersey as a bar to the action, and the court on the trial directed a verdict for the defendant, exceptions to be heard in the first instance at the general term. At general term the exceptions were overruled and judgment directed for defendant on the verdict. (51 Super. Ot., 459). Upon appeal the court of appeals reversed the judgment and ordered a new trial. Upon the second trial the court directed a verdict for the plaintiffs. The main contention of the defendant upon this appeal was that whereas the judgment of the court of appeals proceeds on the theory that the proceedings in the New Jersey courts were in rem, by evidence introduced on the second trial, it was shown that such proceedings were in personam and therefore a bar to this action. Held, that while a double satisfaction is not allowed, concurrent cumulative remedies are not in all cases forbidden. The ground upon which courts proceed in abating a subsequent suit between the same parties for the same cause of action is that the same is unnecessary and vexatious. Here the suits were in different jurisdictions and the circumstances seem to have justified both. No application for stays were made in either jurisdiction and the pleadings were the same, as on the former trial. The trial court in directing a verdict for plaintiffs acted in harmony with the views expressed by the court of appeals.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided December 15, 1891.
    Appeal from judgment entered on verdict directed by trial judge in favor of the plaintiffs, and from an order denying a motion made upon the judge’s minutes for a new trial.

      Estes, Barnard & Tiffany, attorneys, and Benjamin Estes of counsel, for appellant.

      Norwood & Coggeshall, attorneys, and Carlisle Norwood, Jr. of counsel, for respondents.
   Per Curiam.

While a double satisfaction is not allowed, concurrent cumulative remedies are not in all cases forbidden. The ground upon which courts proceed in abating a subsequent suit upon the ground of pendency of a former one between the same parties and for the same cause, is, that the subsequent suit is unnecessary, and therefore vexatious. This is not the case here. The suits were in different jurisdictions, one being in the courts of New Jersey. The circumstances seem to have justified both. No application seems to have been made either to stay the proceedings in the foreign jurisdiction or those pending here. The pleadings are the same as they were on the former trial of this case which resulted in a direction for the defendant, on the theory of election of remedies.

The Court of Appeals in reversing that judgment (see decision reported in 37 State Rep., 230, Book XIII., Lawyers’ Reports, p. 91) settled the law of the case, and the trial judge upon the second trial acted in harmony with the views expressed by our appellate tribunal, when he directed a verdict in favor of the plaintiffs. It follows, that .the judgment and order appealed from must be affirmed with costs.


text:
    GEORGE V. SIMS, Impleaded, Etc., Respondent v. EDWARD L. BONNER, et al., Impleaded, Etc., Appellants.

      Equity action—Eemun'er, interlocutory judgment overruling same.

    This action was brought by Sims in behalf of himself and other stockholders of the Montana Improvement Company, and he prays for a decree establishing his rights as a stockholder, and declaring void any certificates issued in place of certificates owned and held by him, and for an account, etc.

      Held, that the defendants having demurred, substantially, for all present purposes, admit the truth of all the allegations charged, and these sufficiently state a cause of action. The fact that the stock was not registered in Sims’ name does not disable him from maintaining this action. It must be assumed (nothing appearing to the contrary) that the plaintiff is a . resident, and the Code gives jurisdiction in an action by a resident against a foreign corporation for any cause. In cases of fraud, breaches of trust or contract, the jurisdiction of a court of equity is sustained wherever the person of the defendant is found, although property beyond the jurisdiction is affected by the judgment.
    Before McAdam and Gildersleeve, JJ.

      Decided December 15, 1891.
    Appeal from interlocutory judgment of the special term overruling a demurrer to the complaint.

      Charles W Gould, attorney, and W. Allaire Shortt of counsel, for appellants, argued :
    I.—The interlocutory judgment appealed from should he reversed, and the complaint of the plaintiff G. V. Sims dismissed for the misjoinder of parties plaintiff. (1.) The prayer of each complaint is : That the rights and interests of the plaintiff George Y. Sims (or plaintiff Gulliver), as a stockholder in the Montana Improvement Company, Limited, and of all other stockholders similarly situated, be established and decreed; that the alleged issue by that company of certain shares of stock be declared fraudulent and canceled; that there be an accounting of the profits, etc., of the defendant company since February, 1886, and a proportionate payment thereof to plaintiff ; that the defendants be enjoined from concealing or transferring the company’s books, records or property until the final decree of the court; and that the plaintiffs have such other relief as to the court may seem just, and the costs of action. (2) Ellen T. Sims in neither complaint alleges that she is a stockholder of the Montana Improvement Company, Limited; or that stock of that company is held in trust for her; or that she has been by the defendants or any of them fraudulently deprived of certificates of stock, so as to enable her to pray for an accounting, the avoidance of certificates of stock, an establishment by decree of her position as a stockholder, or an injunction against the company’s officers, dr any of the equitable remedies prayed for in either complaint. (3) The second complaint alleges that Ellen T. Sims is a judgment creditor of the co-plaintiff George Y. Sims; but neither complaint alleges in what capacity she sues as plaintiff in this action nor demands for her any specific relief. (4) The second complaint alleges that William C. Gulliver was appointed as receiver of the assets, etc., of the plaintiff George Y. Sims, in supplementary proceedings begun in her instance, by virtue of which appointment he brings this action as a stockholder in the defendant company. (5) The plaintiff Ellen T. Sims is therefore not a party in interest in this action, and so is improperly joined therein as a co-plaintiff. The plaintiff Gulliver may be called her representative. She alleges no ground of claim against the Montana Improvement Company, Limited, or against any of the defendants. Her cause of action is not alleged to be the same as that of the plaintiffs nor, as the case stands, can it be. The interest of one plaintiff in a joint action must be as nearly as possible identical with that of his co-plaintiffs, and at all events be an intelligible answer to the question of the reason of his name appearing on the complaint. See Weeks v. Cromwell, 9 Civ. P. R., 28. (6) It is proper for defendants to demur to the complaints herein for such “ a misjoinder of parties plaintiff.” Code Civ. Pro., § 478, Cl. 5.
    II.—The fact that a judicial order made Ellen T. Sims a party does not make her a proper party. It was claimed on argument that defendants by demurring to the complaint • thereby admitted the fact that Ellen T. Sims was made a party plaintiff by a judicial “ order * * * duly entered,” and that defendants were therefore estopped from objecting to her as improperly joined. The defendants deny this estoppel. Their demurrer admits the fact of her joinder by judicial order, but controverts the legal force of such a joinder ; and defendants urge that it is proper to take that objection by demurrer. If plaintiff’s contention were a sound one, a demurrer could be always overruled on the ground of estoppel as admitting every implication and inference of law contained in the complaint, as well as of fact.
    HI.—Admitting that Ellen T. Sims is properly joined, the facts stated in the complaint to not constitute a cause of action, so far as _ she is concerned, and the complaint should therefore be dismissed.
    IY.—The plaintiff G. V. Sims was guilty of laches in bringing this action, as it appears on the face of the complaint that this action was not brought till nearly five years after the alleged cause of action arose. Where great lapse of time, gross laches, or long and unexplained acquiescence on the plaintiff’s part appears on the bill, even where no statutory bar exists, defence may be taken by demurrer. Story Eq. Pl., § 503, note (6). See also, Humbert v. Trinity Church, 7 Paige, 195; Van Hook v. Whitlock, 7 Hi., 373; Coster v. Murray, 5 Johns. Ch., 522; Cooper Eq. Pl., 167; Truman on Execution, § 307.
    Y.—The court has not jurisdiction of the subject of the action. The court has no jurisdiction to grant the relief asked for in the complaint, or any part of it. It appears from the complaint that the identical stock under which the plaintiff claims any interest whatever in said corporation or its property or profits, was disposed of pursuant to the judgment of the district court of Missoula County, Montana. In February, 1886, plaintiff acquired the possession of three certificates of the stock of the company with blank assignments and powers of attorney (which was not even evidence of title, Dunn v. Comm. Bk., 11 Barb., 585), but never even presented them to be transferred on the books; and before any legal title was transferred, in obedience to an execution issued on said judgment the sheriff “ did levy upon and sell said one thousand shares of stock,” etc. This judgment and the sale by the sheriff are conclusive on any court in the United States. Story on Const., § 183; Hampton v. McConnell, 3 Wheat., 234; Mills v. Duryee, 7 Cranch, 481. This disposition of the stock, which appears ipso facto (as well as from the situs of the corporation as stated in the complaint) to have been within the jurisdiction of the Montana court, is of universal obligation. 1 Greenl. on Ev., § 541, and cases cited; Eisenlord v. Clum, 126 N. Y., 560. And no court of this state has jurisdiction to set aside the judgment or sale on the ground of fraud or otherwise, or to treat it as a nullity (unless for lack of jurisdiction, which is not pretended). Stat. U. S., March 27, 1804; Christmas v. Russell, 5 Wall, 290; Maxwell v. Stewart, 15 Ib., 77. The subject matter of the action is not within the jurisdiction of any court of this state, as is manifest from the complaint; and no judgment of this court can be enforced respecting it. The subject matter is clearly the stock of the Montana corporation, its property and assets, its books and records. These are all without the state of New York, so far as appears from the complaint. No presumption that such property is in the city or state of New York is created by § 266 of the Code of Civ. Pro. The presumption of law is that the property is in Montana. The judgment prayed for, if granted, would be nugatory and ineffectual. Fisher v. Charter Oak (supra). A superior city court in the state of New York cannot acquire jurisdiction of an action against a foreign corporation, where the cause of action did not arise within the city, or the subject matter of the action is not situated within it. The attempt of the legislature to confer such jurisdiction by service of the summons on an officer of the corporation within the city (Code C. P., § 263, subd. 7) was beyond its powers, which by the Constitution (art. 6) do not enable it to increase the territorial jurisdietion of those courts beyond those possessed at the time of the adoption of the article (1869). Landers v. Staten Island R. R. Co., 53 N. Y., 450. “ The terms employed (in the Constitution),” says Judge Allen in that case, “ in giving authority for the enlargement of the jurisdiction of the court, do not, ex in termini, give or necessarily imply an authority to give it jurisdiction either of subjects or causes of action or persons outside the boundary lines of the city” (p. 456). “ The jurisdiction attempted to be exercised here is in respect to a cause of action originating outside the city, and over a corporation not located or having a place of business within the city ” (p. 459); “ and it follows that the court had no jurisdiction of the cause of action or of the defendant, and the legislature could not * * * have given the court jurisdiction of the actions.” See also, Davidsburg v. Knickerbocker Life Ins. Co., 90 N. Y., 526; and P. ex rel. Ryan v. Green, 58 N. Y., 302.
    "VI.—The complaint does not state facts sufficient to constitute a cause of action. There is no cause of action here in this state, as the law does not give any remedy here for the things complained of, nor any of the relief demanded in the complaint. Fisher v. Charter Oak, 52 Super. Ct., 189, last paragraph. It is idle to claim on demurrer that some relief or judgment other than that asked for in the complaint may be given ; for example, a judgment for damages against Bonner for his alleged breach of contract, or against him or Conk-ling, or both, for their alleged tortious conduct. Code Civ. Pro., § 1207 ; Abbott, Brief on Pl., p. 112, and cases cited. A demurrer is not an answer within the meaning of this section (or 275 of the Code of Procedure), and where equitable relief is demanded, a judgment at law cannot be granted, a demurrer being interposed. Kelly v. Downing, 42 N. Y., 77; Fisher v. Charter Oak, supra; Edson v. Girvan, 29 Hun, 422.

      Holmes & Adams, attorneys, and Artemas H. Holmes of counsel, for respondent, argued.
    I. The first ground of demurrer, that the court has no jurisdiction of the subject of the action, is not well taken. The subject of the action, the action itself, is substantially the same as in Lawson v. Stanley, decided March 23, 1891, at the special term of this court reported in 15 N. Y. Supp., 707. The only substantial difference upon the question of the court’s jurisdiction, is that in the case at bar the corporation is a foreign corporation, while in the Lawson case the corporation was domestic. Section 1780 expressly gives jurisdiction in an action by a resident of the state against a foreign corporation, for any cause of action. The question of residence of plaintiff Sims is not raised by the demurrer. But if it were presented, the residence of the co-plaintiff, William C. Gulliver, as receiver, made a party by order of this court, disposes of any question of jurisdiction under section 1780. Fisher v. Charter Oak Co., in this court (14 Abb. N. C., 32), as to jurisdiction where the non-residence of a sole plaintiff does not appear on the face of the complaint, and the question arises on a demurrer, is precisely in point. The defendants who demur are sued as tort-feasors and the action might proceed against them, or either of them alone, without the presence of other defendants ; it is against directors, as trustees, to call them to account for the manner in which they have discharged their trust, and is one of which courts of equity always have jurisdiction, as said in Brinkerhoff v. Bostwick, 99 N. Y., 193. That this court, as a court of equity, has jurisdiction of the subject matters of the action, is abundantly established by the decision in Lawson v. Stanley, supra, and cases there cited by Judge McAdam. The following cases support the jurisdiction. Wardell v. Railroad Co., 103 U. S., 651; Ervin v. Oregon, etc., Co., 22 Blatch., 187; 23 Ib., 517. That the stock of a plaintiff, bringing such an action as a stockholder, has not been registered in his name, is no reason why he should not maintain the action. Ervin v. Oregon, etc., 62 How., 490.
    II. The second ground of demurrer is not well taken. Nothing appears in the complaint to warrant the claim that Ellen T. Sims, named as a party plaintiff, is a misjoinder. The only reference to her is in paragraph 1 of complaint. There the order of this court, that William C. Gulliver as receiver “ and Ellen T. Sims be' made parties plaintiff herein, and that the summons in this action be amended accordingly,” is pleaded. This allegation the demurrer admits; and also admits that the order was duly made and entered in the office of the clerk of this court. That order has not been appealed from. The power of the court, inherently and under section 452 of the Code, to bring in new parties, is sustained by Ladd v. Stevenson, 112 N. Y., 325, and cases there cited. Section 723 also empowers the court to amend a process, the summons in this case, by adding new parties. The only limitation on the exercise of this power of adding or striking out parties is that “ a sole defendant cannot be stricken out and another substituted in his place.” Riley v. Stern, 23 Abb. N. C., 435; 10 N. Y. Supp., 8; N. Y., etc., Co. v. Remington, etc., 89 N. Y. If defendants were aggrieved by the order adding new parties plaintiff, the remedy was by appeal from the order, not by demurrer. The order was not appealed from.
   Per Curiam.

The plaintiff Sims became the owner of three certificates of capital stock of the Montana Improvement Company, a foreign corporation, representing 750 shares of said capital stock of the value of $75,-000. The certificates were issued to George Conkling and were by him transferred to Sims, in fulfillment of a contract made by him with the corporation, of which transfer the corporation had timely notice.

The corporation subsequently instigated an action in favor of one Bobertson against Conkling, in the courts of Montana, in which judgment was suffered to go by default against Conkling, and on it the sheriff is said to have sold Sims stock as the property of Conkling and one Hammond purchased the same for the nominal consideration of $100. The judgment was fraudulently obtained by the procurement of the officers of the corporation and with its consent and connivance, and as part of a conspiracy to defraud Sims.

The officers of the corporation have wasted and appropriated its assets, pretend that it has ceased to exist or transact business.

The action is brought by Sims on his behalf as stockholder, and on behalf of all other stockholders.

He prays for a decree establishing his rights as a stockholder and declaring void any certificates issued in place of those held and owned by him, and that he have an account, etc. The defendants having demurred, have for all present purposes admitted the truth of the allegations charged and these sufficiently state a cause of action. The fact that the stock was not registered in Sims’ name, does not disable him from maintaining the action. Ervin v. Oregon R. & N. Co., 62 How., 490. It must be assumed (nothing appearing to the contrary), that the plaintiff is a resident of this state, Fisher v. Charter Oak L. I. Co., 14 Abb. N. C., 32, and section 1780 of the Code gives jurisdiction in an action by a resident of the state against a foreign corporation “for any cause.” As was said by the court, in Ervin v. Oregon R. & N. Co., 62 How., 492. “ In cases of fraud, breaches of trust or contract, the jurisdiction of a court of equity is sustained wherever the person of the defendant be found, although property beyond the jurisdiction be affected by the judgment. Citing Gardner v. Ogden, 22 N. Y., 327; March v. Eastern R. R. Co., 40 N. H., 548; Massie v. Watts, 6 Cranch, 148. It is not important now to indicate the specific relief to which the plaintiff may in the end he entitled. That will depend upon the facts established at the trial. The complaint makes out a cause of action. The relief within the power of the court to grant may he incomplete, and not commensurate with the injuries and loss sustained, growing out of the fact that material interests affected are outside of this jurisdiction, but that affords no adequate reason why an attempt in that direction should not be made. Efforts in such direction frequently afford only approximate justice. In so far at least as the defendant is personally concerned, and the property and assets within this state may be impressed, justice may be accomplished.”

An inspection of the books of a foreign corporation may be ordered, but if they are in constant use in a distant state sworn copies may suffice. Ervin v. Oregon R. & N. Co., 22 Hun., 566. This feature is referred to as incidentally bearing upon the remedies enforceable where jurisdiction is obtained against a foreign corporation. The observations made, answer the objections that the court has no jurisdiction of the subject of the action, and that the complaint does not state facts sufficient to constitute a cause of action. The next ground of demurrer is that there is a misjoinder of parties plaintiff, in that Ellen T. Sims is made a party plaintiff. The complaint shows that she was made a party by force of an order of the court.

This order appears in the appeal book, has not been appealed from, and remains in full force and effect, and concludes the parties to the extent, that she was rightfully brought in under section 452 of the Code. It was certainly not intended that where a party was joined under this section, and no appeal taken from the order, that the propriety of the order could be reviewed on demurrer assigning the misjoinder of the party added. The law has wisely afforded another mode of reviewing the action of the court, and if that mode is not employed, the right to test by demurrer the propriety of joining, the party is lost.

The Code provisions, though independent, must be so worked and construed that they may operate in harmony, that orderly rather than chaotic practice may prevail. It follows that the interlocutory judgment, overruling the demurrer, was properly made, and must be affirmed, with costs.