text:
    THE INDIANAPOLIS, PERU AND CHICAGO R. R. CO. Respondent, v. THOMAS M. TYNG, Appellant.

      False repi'esentations—when action may be maintained for.

    An action, founded upon the fraud and deceit of the defendant, cannot be maintained, in the absence of proof that the defendant believed, or had reason to believe, at the time he made them, that the representations made by him were false, and for that reason fraudulently made ; or unless it be shown that he assumed, or intended to convey the impression, that he had actual knowledge of their truth, though conscious that he had no such knowledge.

      Wakeman v. Dalley (51 N. Y., 27) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The facts are stated in the opinion.

      Hernry E. Davies, Jr., for the appellant.
    The plaintiff did not rely upon the representations of the defendant. (McKyring v. Bull, 16, N. Y., 297; Wright v. Delafield, 25 id., 266; Paige v. Willet. 38 id., 28; Werner v. Borden, 49 id., 286.) Personal knowledge of the falsity of the representations on the part of the defendant must be shown. (Craig v. Ward, 3 Keyes, 387; Comstock v. Ames, 1 Abb. Ct. App., 411; Hubbard v. Briggs, 31 N. Y., 518; Robinson v. Flint, 58 Barb., 100.)

      C. A. Hand, for the respondent.
    The defendant is chargeable with the misrepresentations of his agent. (Sandford v. Handy, 23 Wend., 268; Jeffrey v. Bigelow, 13 id., 518, Kerr on Fraud, 161; Elwell v. Chamberlin, 31 N. Y., 618.)
   Brady, J.:

This is an appeal from a judgment, entered upon the report of Judge Sutherland as a referee. The following statement by the repondent’s counsel, of the averments in the pleadings, and of the facts established on the trial, is adopted as a correct exposition of the material facts.

The complaint charged, that, by false representations, the defendant induced the plaintiffs to purchase through his instrumentality, two locomotives, called the “ Maryland ” and “ Waterford,” at $26,000, as the lowest attainable price; and for that purpose obtained from the plaintiffs the $26,000, and also $500 asa compensation for himself, when, in truth, the undisclosed vendors of the locomotives, sold them for not over $20,000, and the plaintiffs were thus defrauded out of at least $6,500 in cost of the locomotives. And, as a second cause of action, the complaint further charged, that the defendant, as an inducement to the plaintiffs to be the purchasers of the two locomotives (which were at a distant place, and not seen by the plaintiffs), also misrepresented, or caused to be misrepresented, their character and condition; that having thus secured the plaintiffs as purchasers at $26,000, the defendant, instead of disclosing the names of the true vendors, signed a bill of sale, in which he incorporated the false description, at the same time asking and obtaining from the plaintiffs, as a compensation for his service in effecting the purchase, $500; that the locomotives did not answer to the description, and were comparatively worthless; and that, by means of the fraudulent representations and warranty of the defendant, the plaintiffs were defrauded of $17,100.

The answer denied the fraud, disavowed responsibility for the condition or character of the locomotives, and asserted for the defendant the position of vendor at $26,500, with the right to gain and retain whatever profit there might be between that and the true price. By report of the referee, it was found that the defendant defrauded the plaintiffs in respect both of the price, and of the description, condition and value of the locomotives, and thereby caused a loss to the plaintiffs of $14,000, ($6,000 in the price and an additional $8,000 in value) for which sum with interest and costs, judgment was directed and entered. The plaintiff’s company and railroad were in Indiana. The locomotives were at a machine-shop in Lowell, Massachusetts. The transactions with the defendant for the purchase, were at New York, and in them the plaintiffs were represented by the late Mr. Francis B. Cutting, who was vice-president of the company, and owned a large interest in it. The testimony of Mr. Cutting was not contradicted by the defendant, who did not take the stand as a witness, and there was no conflict of evidence respecting the facts and circumstances of the purchase. The defendant, as a dealer in railway supplies, became known to Mr. Cutting, through an advertisement, in October, 1864. He contracted for the sale to Mr. Cutting, at $16,500, of a second-hand engine (the “ Gazelle,”) which he was to put in a specified condition within forty or sixty days. To superintend the repairs, then in progress at Jersey City, Mr. Cutting employed one Levi P. Bissel, an engineer recommended to him for that purpose. Shortly afterward, the defendant, pleading that fulfillment of the contract (under inspection) would produce heavy loss to him, persuaded Mr. Cutting to forego the benefit of the contract, and cancel it upon receipt of $1,000 to cover the expense already incurred by plaintiffs, by reason of it. This was the first transaction and acquaintance between Mr. Cutting and the defendant or Bissel. Mr. Cutting subsequently gave an invitation to the defendant, to “ find an engine about the size and form of the Gazelle.” Accordingly, on the 5th or 6th January, 1865, the defendant called upon Mr. Cutting, with something that would “just suit” him, and stated to him that there were at Lowell, some second-hand engines, ready for delivery, which “had been thoroughly repaired, and could be bought cheap.” He produced two sets of specifications, one of a large engine, and one of two smaller engines, and stated that Bissel “ had examined those two engines, with the specifications, and that he would send Bissel to him.” On the same day, Bissel, having been sent by the defendant to Mr. Cutting, represented to him that he had examined the engines, and, professing to give in detail the results of such an examination, he recommended the two smaller engines, and represented that they agreed with the specifications in all respects (except the thickness of tire), and that “ they were good serviceable engines, and cheap at the price.” Mr. Cutting telegraphed to the president of the company, and received a reply. On Monday, 9th January, 1865, Mr. Cutting saw the defendant at his office, and showed him the telegram. The defendant, after ascertaining what would be Hasson’s charge for forwarding, asked from Mr. Cutting permission to telegraph parties in Boston “for one of those engines — one of the $14,000 engines ”—and, upon Mr. Cutting’s saying he might telegraph an offer of $13,500 for one of them, the defendant said to him: “ You will stand a better chance to get them, if you will authorize me to offer $26,000 for the two.” After some hesitation, Mr. Cutting consented that he might “ send the telegram, and offer them $26,000 for the two engines,” and the defendant undertook to do so. On this occasion the defendant wrote and procured from Mr. Cutting the two papers of that date, manifestly intended as mere authentications of Mr. Cutting’s offer to unknown vendors through the defendant. They had passed from Mr. Cutting’s recollection, but were taken by defendant to show that he was authorized to buy,” and confirm the accuracy, even in detail, of his testimony; one of the papers being an offer for one of the engines in accordance with his first proposal, and the other being the final order of $26,000 for the two, as authorized by Mr. Cutting upon the persuasion of the defendant, in view of the difficulty assumed by him in obtaining one at that rate.

On the 11th January, 1865, the defendant came to Mr. Cutting’s office, and represented to him that there had been such delay and unsatisfactoriness in making the purchase by telegraph, that he had himself “ gone to Boston and had seen the parties, and that they accepted his [Mr. Cutting’s] offer of $26,000 for the two engines.” Not knowing who were the vendors, nor anything except from the representations of the defendant and Bissel respecting the engines, Mr. Cutting said to the defendant, that he should have a guaranty that “ these engines are equal to the specifications.” To which the defendant replied, that “ he knew the parties and would give the guaranty; ” and he was advised by Mr. Cutting that, in that case, “ he had better take from them a counter engagement, to keep him right.” The defendant undertook to prepare such a guaranty, and for that purpose obtained back from Mr. Cutting his description of the engines. It was also arranged that payment should be made, on production of Kasson & Co.’s forwarding receipt; and of this date is the certificate procured from Mr. Cutting by defendant, authenticating his power to complete the purchase from the undisclosed vendors. That such was its purpose, appears not only by the testimony of Mr. Cutting, but by the certification of Mr. Cutting’s signature by John Parker, cashier of the Phoenix Bank. A day or two afterward, the defendant reported that there was still delay, “ he did not know exactly what,” and proposed to go on to Boston and see what was the cause of it; and in view of the trouble he was taking in Mr. Cutting’s behalf, said, “ although the purchaser is not bound to pay the broker any commission, yet, in this case, I think I have the right to appeal to your liberality in the matter.” In response to which appeal, Mr. Cutting consented to allow him a commission of $500. The defendant also explained that, in order to enable him to complete the purchase and settle with the vendors in Boston, he would need to “ have some authority from him, to show them that he was entitled to draw.” Accordingly, the defendant wrote an authority to draw, which was dated and signed by Mr. Cutting, the amount of the commission being included, so that there would be but one transaction. Shortly afterward, the proposed guaranty or bill of sale was shown by defendant to Mr. Cutting, who glanced at it and asked if the specification was correctly embodied. The defendant assured him that it was, and took it and the authority away.

On the 18th January, 1865, the defendant telegraphed from Boston, that he had drawn for the amount. But no such draft was presented or in fact drawn, and on the next day, nineteenth January, the defendant called upon Mr. Cutting in New York, and stated that, “instead of drawing upon him, he had arranged with the parties in Boston, to give his own check on the Phoenix Bank; that he had given them his own check and wanted me to give him a check for like amount, to make his good.” Thereupon Mr. Cutting gave to the defendant his check for $26,500, which was duly paid, and received from him Hasson’s receipt and the receipted bill for $26,000 purchase-money and $500 commission, and the bill of sale, dated back by defendant to January 11th, 1865, and the unused authority to draw. And thus the purchase of the engines was consummated. Hasson & Co. forwarded the engines from Lowell to their destination, Peru, Indiana, but were obliged to notify Mr.'Cutting of difficulties in running them on, with merely their own bulk and weight to transport. They had to be taken into machine shops, and the question, referred by them to Mr. Cutting and by him to the defendant, was, whether to repair the engines at Buffalo, or forward them as they best could without repair. With the concurrence of the defendant, they were forwarded. When, at last, the engines reached the plaintiffs, in Indiana, their true character and condition were discovered by the plaintiffs, who forwarded to Mr. Cutting reports of officers and machinists, by whom they were examined at Peru. These reports pronounced the engines, in general and in detail, to have been falsely described to Mr. Cutting, and a fraud upon him and the company, and of no value except by weight as old iron. After receiving these reports, in February, 1865, Mr. Cutting communicated them to the defendant, who thought “ Mr. Gilman must be mistaken,” but finally conceded that he was probably not mistaken in such facts as that there were 109 brass tubes instead of 136 copper ones. Mr. Cutting thought it a matter “ he ought to look into,” and suggested that the defendant should personally, or otherwise, test the accuracy of the reports; but the defendant “ had not time,” and upon being reminded of his guaranty, informed Mr. Cutting that what “ he guaranteed was, that these engines were the same, and in the same condition as when examined by Bissel.” Mr. Cutting declined to then discuss the question of construction, and renewed the suggestion, as matter of reputation and good morals, that the defendant ■ should give some attention to the reports. The defendant did not acquiesce; neither did he give any trace of his authority for the specifications, except that it was “ parties in Boston” and not Bissel, whom, however, he again “ sent around to see him.” Bissel finally confessed, in substance, that his former report of having made an actual, detailed examination, was untrue, and he now asserted, as his authority for its details, hearsay statements of the man who showed him the engines, instead of such an examination. Upon Mr. Cutting’s suggestion that, in view of the “ great difference between Gilman’s reports and his own reports,” he had better go out to Indiana (of which Mr. Cutting offered to pay half the expense if the defendant would pay the other half), he promised to submit the offer to the defendant, but he did not return, and was not again seen by Mr. Cutting. These developments evidently inducing Mr. Cutting to suspect that there might also have been fraud in the price, he, at an interview with the defendant, asked him, “ a little abruptly,” who was the owner of the engines. The defendant “hesitated a little while and answered, Samuel B. Allen, of Boston.” Mr. Cutting asked, “ Did you pay $26,000 for those engines ?” Said he, “No, I paid $24,500 for them.” Mr. Cutting asked, “Did you get a commission from me, of $500, and make me pay $26,000 for engines you had agreed to buy for $24,500 % ” “ Oh, [said he] they cost me, with expenses, more than $24,500.” And to the question, “ What expenses ? ” he hesitated and finally said, “ that the engines had cost $24,000 or $25,000, or something; I think $24,750 or something — an additional sum.” To the question, “ What became of the differences ? ” he said, “ The difference between what Mr. Cutting had paid, and what the owner had sold for, amounted to about $1,500, and had been divided between the agents in Boston, Whitney, Bridges and Stearns [brokers like the defendant] and the defendant, each taking one-half.” To the question, “ Why did yon charge me a commission for doing this?” the defendant answered, that at the time the commission was asked and granted, the price was $26,000, but afterward, Whitney, Bridges and Stearns had induced the owners to throw off $1,500 from the price.” These statements of the defendant proved also to be untrue. The owners of the engines had been seeking to sell them at $20,000, from as far back as the previous November; and, before Bissel was first sent to Mr. Cutting by defendant, he was advised of the anxiety to sell. The owners, in fact, received only the $20,000, less $500, commission deducted by Whitney, Bridges and Stearns, their Boston brokers. When asked by Mr. Cutting, why he did not tell him the truth when he rendered and receipted his bill for the $26,000 purchase-money and $500 commission, the defendant replied, that “ nine out of ten men would have done the same thing; ” to which Mr. Cutting responded with the regret that the defendant was “one of the nine.” The‘further narrative of Mr. Cutting is but confirmatory of the foregoing summary. He again unsuccessfully urged the defendant to give attention to the matter, as of importance, involving a good deal of character.” The defendant conceded that he had employed Bissel because he thought his “ favorable report of them [the engines] would induce him to buy them.” He took no counter guaranty, because “he did not consider he was liable on that guaranty.” Mr. Cutting ascertained at the Phcenix bank, that the true amount of the check, given by defendant at Boston, was $23,000 (against Mr. Cutting’s check for $26,000), and the payees were Whitney, Bridges and Stearns, the Boston brokers, and he wrote to the defendant the letter of 13th March, 1865, asking him to preserve it, receiving the reply that he would do so. There, was some interposition of advice given to defendant by his counsel, Mr. Fitkian, respecting the character in which he conducted the negotiation, but Mr. Cutting properly suggested to the defendant, that, if he proposed to be the real vendor, he should have told him, so as to put him on his guard — then he would have dealt equally.” The defendant also said that the specification was not in the handwriting of Whitney, Bridges and Stearns, but would not say in whose handwriting it was.

This is an impressive array of facts, and it would seem to be quite conclusive upon the correctness of the findings of the referee, charging the defendant with having made false representations, and for an improper purpose. It is nevertheless asserted by his counsel, that he cannot be held responsible; that he is not shown to have made them with knowledge that they were false, and with intent to deceive as required by law. These elements, he claims, are absent, and that such absence is fatal to the plaintiff’s recovery. Whatever may have been the rule prior to that decision, however seemingly inconsistent with fair dealing and the right of the general reliance of men upon each other for honesty in their transactions, one with the other, it was held in Bennett v. Judson that one, who, without knowledge of its truth or falsity, makes a material misrepresentation, is guilty of fraud, in legal contemplation, as much as if he knew it to be untrue. Mr. Justice Comstock, by whom the opinion of the court was written, all the judges concurring (except Mr. Justice Seldeh who expressed no opinion) said: The question of law was whether the representations could be ■ deemed fraudulent unless they were known to be false,” and thus, although the decision has been criticised, limited and finally qualified, the precise point stated was involved and passed upon and settled. It had been discussed by the profession, but from a professional stand-point only, on authority; and the result of that case was satisfactory to them, and to the common sense of the business people of the land. It was rare, indeed, to find an individual who hesitated to say at once, that the positive assertion of a material fact, upon which another was induced to part from his property, should be visited with the same consequences in regard to the transaction, if false, as if the person asserting it knew it to be so. It was a view in entire harmony with a principle of law which should he universal, that he who unjustly deprives another of his property, should be compelled to restore it or its equivalent. It was recognized as a sequence, that when the injury was accomplished, it was of no consequence to the victim, whether his wrong-doer did the mischief knowingly or not. He knew that he could not do it innocently. Having made the assertion, and induced reliance upon its truth, he could not, in morals, and it would seem that he ought not in law, to be permitted to say, “ I did not make it, knowing it to be false, or with an evil design or intent,” and thus escape the responsibility which it created. “ Whether a party,” says Justice Story, misrepresenting a material fact, know it to be false, or make the assertion without knowing whether it were true or false, is wholly immaterial, for the affirmation of what one does not know or believe to be true, is equally, in morals and in law, as unjustifiable as the affirmation of what is known to be false.” When a man asserts the existence of a fact, it should be done either upon knowledge, or upon circumstances which, when grouped, would show it to be true, always maintaining the ability for his own protection and for the justification of his own conduct, of proving it to be so. No man has the right to affirm to be true, what he does not know to be so, either of his own knowledge or as the result of proper and impartial investigation, and therefore susceptible of proof. It cannot be denied, that a departure from this • rule of conduct, has occasioned multitudes of wrongs in society, for which no redress could be had, without reference to the numerous litigations to which it has given rise, the dishonest practices which it has inaugurated, and the destruction of private character which it has occasioned by the slanders which it has circulated. If the rule should ever be adopted in this State, that no man shall respond in damages, who utters a false affirmation, unless he knows it to be false, or believes it to be so, and makes it with intent to deceive, the legislature should be invoked to destroy it, and to declare what is consistent with good morals and fair dealing. It becomes necessary, therefore, to ascertain, in this case, the rule which now exists, to see how far the case of Bennett v. Judson has been modified or limited, and whether or not it stands unimpaired. The result is, as declared in the recent case of Wakeman v. Dalley, and upon a review of the authorities, that an action, founded upon the deceit and fraud of the defendant, cannot be maintained, in the absence of proof that the defendant believed, or had reason to believe, at the time he made them, that the representations, made by him, were false, and for that reason fraudulently made, or unless it be shown that he assumed, or intended to convey the impression, that he had actual knowledge of their truth, though conscious that he had no such knowledge. The rule thus declared, is sustained by the following decisions: Marsh v. Falker, Oberlander v. Spiess, Meyer v. Amidon, Hubbell v. Meigs, Degraw v. Elmore, Ross v. Mather; and it is the law of this State. The doctrine of the case of Bennett v. Judson, is not therefore overruled, but modified. The facts in that case presented the question stated by Mr. J ustice Comstock, fairly and decidedly. The representations were made in belief of their truth, and upon information relied upon. There was no pretense that there was knowledge or belief of their falsity by the defendant or his agent. The case has sometimes been otherwise interpreted, but the converse of the view just expressed, cannot well be maintained. The decision, however, is no longer the unqualified law of the land, and something more than a positive assertion, though false in fact, must be shown by evidence, to justify a recovery. It must be proved that the defendant knew, or believed the representations to be false, or that he assumed, or intended to convey the impression, that he had actual knowledge of their truth, though conscious that he had not. The Court of Appeals felt bound by the authorities thus to declare the doctrine. The decisions reviewed, made by the English courts, were to the same effect, but it must nevertheless be regretted that they felt obliged to follow them. It was only necessary to strike-from the form of legal responsibility to be created, the charge of fraudulent representation, if that were the objectionable element, and to hold that the statement made, being in fact false, and its-utterance having occasioned injury to the person receiving and acting upon it, it was a subject for redress. It should,” in the-language of Mr. Justice Comstock, be declared that the law was not so unreasonable, as to deny redress in such a case.” It would be just to except from the operation of the rule stated, actions for deceit, resting on representations of solvency, because it may be assumed, that when information of that kind is sought, it must necessarily partake of the character of information only, and not of knowledge, unless, by some special and particular phrase, it is intended to be otherwise. It is not ordinarily communicated or employed for personal gains, or personal advantages, or for the purposes of barter between the seller and the person giving it. It thus however appears, that, although the rule declared in the case of Bennett v. Judson is qualified, the injured party is not compelled to prove that the person making the representations knew them to be false. If he assume or intend to convey the impression that he has actual knowledge of their truth, when conscious that he has not such knowledge, it is enough. Judged by this standard, and after a careful examination and consideration of the evidence in this case, we feel obliged to say that there can be no well founded doubt of the justice of the referee’s findings. We do not deem it necessary to express in detail the reasons for this result, but to refer to the facts recited, as a complete answer to the assertion, that the evidence given did not warrant them. The defendant was not examined on the trial, and we have not the benefit of any denials or explanation which he might have made or given, nor have we the testimony of Mr. Bissel, so closely identified with the transaction, and with the defendant. • The defendant has, it is true, invited by this appeal, a discussion of the facts and circumstances disclosed, but, nevertheless, we shall content ourselves with this mode of dealing with them. It is quite apparent from the facts established, that the defendant, if he did not know of the falsity of the statements made, at least assumed, or intended to convey the impression, that he had actual knowledge of the truth of the representations as to the condition of the engines, though conscious that he had not, while it is conceded by him that he knew the price to be paid for them, was less than the sum he named and received for them from Mr. Cutting, and therefore, that his representations in that respect were false. The case thus stands upon the broad ground that the defendant was guilty of fraud. Having arrived at this conclusion, it is not considered necessary to examine the various phases in which this appeal was ingeniously presented on the part of the defendant. The representations as to condition and price having been declared to be false, within the rules of law, and the defendant having been the moving and procuring cause of the sale, in the character of the plaintiff’s agent, it becomes wholly immaterial, in what manner he may have formally changed, if at all, that relation to them. He received their money, in compensation for his services in procuring for them the engines, and gave his guaranty, it would seem, only as part of the scheme of fraud, which increased his chances of success, and rendered discovery the more doubtful. The broker or agent who buys for, and with the money of, his principal, can acquire no advantage by passing the title through himself. When the existence of fraudulent design is declared, it matters little by what variety of procedure the guilty party endeavors to hem himself in. All his barriers must give way before the crushing vitality of legal principles. Fraud vitiates everything. There is no shield which can protect, and no strategy which can save him, if the fraud be not waived or condoned, and the statute of limitations be not applicable. These views dispose of the main questions in the case, relating to the responsibilities of the defendant growing out of his conduct. In regard to the exceptions, it is necessary to say that the evidence in reference to the true condition and value of the engines, is in conflict, but the finding of the referee is abundantly' sustained. We cannot say, therefore, that his conclusions on that subject are .objectionable. It must be further said, that the exceptions taken -during the trial, have no merit, and do not warrant us therefore in disturbing the judgment. The motion to dismiss the complaint, -which was denied, and to which exception was taken, was properly -disposed of, and the general discussion of the case and the results .arrived at herein, are a sufficient answer to the points made on •.that motion. The exceptions to evidence, worthy of mention, are -based: 1st. Upon the proposition that Mr. Cutting could not state •the terms of his offer, which was in writing, signed by him; or a (Conversation in reference to a transaction concluded by agreement Sn writing; or, in other words, could not state the details of the negotiations which led to the signing or execution of these papers, or either of them, when it is apparent that they were used, only, as forming part of the res gestae, and could be so employed, the papers being the result, in part, of the fraud practiced. The evidence objected to, was not given to vary the terms of the contract, about which there was no dispute. It was for the purpose of demonstrating the object and design of the defendant, and the fraudulent devices which were resorted to, to accomplish them, and was clearly competent. Fraud opens the door to investigation, and no written instrument thus assailed, is entirely protected from the effect of parol evidence. The covin,” saith Lord Coke, doth suffocate the right.”

2nd. Upon the ground that Bissel was not authorized by the defendant to represent him, when it appears that Bissel was sent by him to Mr. Cutting, having been selected as likely to affect the latter favorably; and when the relation being thus established between them, it appeared that Bissel participated in the representations as to the condition of the engines, and not only failed to inform Mr. Cutting of their selling price, of which he was advised in Boston, but also to appear as a witness in explanation of the circumstances, or in vindication of his own conduct — a silence in which the defendant also united.

It must be further said, that the objection to the introduction of the copy of the specification complained of, is not tenable. The whole evidence considered, it is the best conclusion that the original was not produced, and that the copy received, was in fact a transcript of the original, as presented to Mr. Cutting. The judgment should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

      21 N. Y. Rep., 238.

       1 Story Eq., § 193, note.

       51 N. Y., 27.

       50 N. Y.,480.

       40 N. Y., 562.

       50 N. Y., 1.

       45N. Y., 175.

      51 N. Y., 108.

      45 N. Y., 169.

       Bench v. Sheldon, 14 Barb., 66; Moore v. Moore, 5 N. Y., 256; Edmonstone v. Hartshorn, 19 id., 9; Weed v. Warner, 5 Paige, 656.

         Story on Contracts, § 495.

      1 Greenleaf Evidence, §§283, 284; Sandford v. Handy, 23 Wend., 260.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    EMIL HEINEMAN and another, Respondents, v. JOHN HEARD and others, Appellants.

      Examination of witness on commission•— Answer of witness to inten'ogatory—when may be excluded— Order to buy goods—fail/wre to comply with—damages for— how measured.

    A witness was examined by commission, as to the times at which„oertain varieties of silk could have been obtained at a given price, and answered the question, stating what he knew on the subject. To the general interrogatory, “If you know any other matter or thing concerning the matters hereinbefore inquired about, declare the same as fully and minutely as if you had been particularly interrogated thereto,” he proceeded to state what he thought in reference to the time when the contracts were made for the silk, and certain inferences or conclusions of his, on the subject, field, that the answer was properly excluded. This action was brought to recover damages for a failure on the part of the defendants, to comply with an order given by the plaintiffs, requiring them to purchase silks in China, and ship them to New York. At the trial the defendants’ counsel requested the court1 to charge, that the defendants were not liable, unless they could, with reasonable diligence, have shipped the silks by a certain sailing vessel, shown to have arrived in this country; and that in any event they were only liable for the difference between the cash, market value, at the time of arrival here of such ship as it is shown could have brought such merchandise under the terms of the order, and the cost of so much only of such merchandise as should have come by that particular ship. Held, that the court properly refused so to charge. • The plaintiffs were not obliged to show that a certain vessel, shown to have arrived in this country, could have been obtained to carry the silk. It. was enough for them to show that a vessel or vessels were loading in China ports, hound for this country, in which, or in any one of which, the defendants, with proper diligence, could have obtained freight for the silk. The court instructed the jury that the proper measure of damages was the difference between the cost of the silk laid down in New York, and its market value there at the time it would have arrived in the usual course of trade. Held, that this was correct. A loss of profits, within the contemplation of the parties at the time of entering into the contract, and a direct consequence of the breach, and not speculative or contingent, may be recovered.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.
    The plaintiffs are merchants, carrying on business in the city of New Tort, and the defendants are engaged in business in China.'
    This action was brought to recover damages for a failure, on the part of the defendants, to purchase and ship certain silks, in accordanee with instructions sent to them by the plaintiffs. The goods were to have been purchased and shipped before September 1st, 1865. In a letter written to the plaintiffs, dated December 14,1865, the defendants admitted that they might have purchased the silk at a price within the limit fixed by the plaintiffs, and did not claim that there was any difficulty in obtaining silk of the kind required, or in procuring its shipment in time to enable them to draw for the price, under the letter of credit furnished by the plaintiffs. The only reason they assigned for the non-fulfillment of the order, was, that they thought it best to delay purchases, in the hope of a still further decline in the price.
    The case has been already passed upon by the General Term and Court of Appeals. The decision of the General Term is reported in 58 Barbour, 524, and that of the Court of Appeals in 50 New York, at page 27, where the facts of the case are fully stated.

      E. W. Stoughton, John E. Ward and William S. Dexter, for the appellants.
    That the plaintiffs could only recover nominal damages. (Story on Agency, § 220; Cunningham v. Bell, 5 Mason, 161; id., 3 Peters, 69; Schooner Lively, 1 Gallison, 325; Griffin v. Colver, 16 N. Y., 491.)

      W. W. Macfarland, for the respondent.
    That the measure of damages adopted by the court was proper. (Griffin v. Colver, 16 N. Y., 489; Radley v. Baxendale, 9 Exch., 346; Borries v. Hutchinson, 11 Jur. [N. S.], 267; Masterton v. The Mayor, 7 Hill, 62; Waters v. Towers, 8 Exch., 401; Bracket v. McNair, 14 John., 170; Lowenstein v. Chappell, 30 Barb., 241; Clark v. The Mayor, 3 id., 288; Shepard v. Milwaukie Gas-Light Co, 15 Wis., 318; Hamilton v. McPherson, 28 N. Y., 72.)
   Brady, J.:

The defendants have not denied their obligations to make a purchase of the silk for which orders were given by the plaintiffs and accepted by them. They have assumed only to interpret these orders as investing them with a discretion, and thus to limit the effect of their engagement. The purchases were, by the original understanding, to be made, and the goods shipped, not later than the 1st July, 1865. The letter of credit, authorizing the defendants to draw for the amount to be expended by them, provided that their bills must be drawn in China, prior to the 1st July, 1865, and advice thereof given in duplicate, such advice to be accompanied by bill of lading filled up to order. The time of performance was subsequently extended to the 1st of September, 1865, the result of a correspondence between the parties. On the trial, it was claimed that the defendants had abundant opportunity to buy the silk desired, and within the limited price, both before the first July and the first September, and that freight for it could have been obtained, also, prior to the first July, under the original order, and prior to the first September under the extension mentioned. The ruling evidence in favor of the first claim, was the letter of the defendants, dated the 14th December, 1865, in which it is confessed by them that they could have made the purchases within the prescribed limit, but assigning the reasons why they were not made. This letter was the subject of consideration by the Court of Appeals, when the judgment heretofore entered on a dismissal of the complaint, was reviewed. The nature of the engagement made by the defendants to purchase, and the character of the orders given them, whether conferring discretion or not, were also the subject of examination and of interpretation, and it was determined in reference to the latter, that they were not justified in allowing the opportunities to pass, and the time to elapse, within which they could purchase under the letter of credit, although they might, in making the selection, have refused the first offer made to them, or the first lot of silk discovered. The letter of the fourteenth of December, was held to have established a prima facie case for the plaintiffs, on the subject of the defendants’ ability to fulfill the orders of the plaintiffs, both as to the purchase of the silk, and its shipping within the time designated—that is, prior to the 1st July, 1865 — but it was also declared, that the admissions contained in it were not conclusive, and would not preclude them from showing any impediment which might have existed to the execution of the order, such as the absence of any vessel, in which to make the shipment, or their inability, notwithstanding diligent efforts to find the required qualities, or procure the silk to be re-reeled, in time to be shipped and drawn against, under the letter of credit. The defendants, upon the second trial, which, with its incidents, is now under review, enlarging their excuse or defense, as they claim, only partially stated in the letter of the fourteenth of December, attempted to show that there was no vessel in which, if the silk had been purchased, it could have been shipped on or before the 1st July, 1865, and that it could not be purchased under the subsequent limit, and thus to answer completely the charge of' negligence or failure of duty in omitting to obey their instructions. The questions thus arising both upon their ability to purchase the silk and to obtain freight for it, were submitted to the jury, and by them disposed of on the evidence, adversely to the defendants. There were no exceptions taken to the charge of the presiding judge. The rules by which the jury were to be governed in their deliberations, were fully and fairly stated. The respective rights and obligations of the parties, and their relation to each other, were explained, and the nature and extent of the defendants’ contract, and their duties under it, clearly laid down. Of the many requests to charge, a few only were refused, but whether the refusals were warranted or not, it becomes, it is true, our province to declare. This duty is not burdensome, because, when this case, on appeal from the judgment i'endered on a former trial, was reviewed by the Court of Appeals, as suggested, all the questions involved, except perhaps the rule of damages, were passed upon and settled. The case was remitted for trial, to ascertain and to determine the facts in regard to the controversy, whether conceded or disputed, and thus to enable the defendants to relieve themselves of the effect of the admissions contained in the letter of the 14th December, 1865, by proof of proper efforts by them to execute the orders given, and of the existence of obstacles or impediments preventing it, whatever such obstacles or impediments might have been. The evidence on both sides is now before us. It is insisted, nevertheless, that errors committed in the admission and exclusion of evidence, and in the refusals of the court to charge certain propositions, submitted on the part of the defendants, entitle them to a reversal of the judgment appealed from. It appears, however, that all of the evidence admitted against the defendants’ exceptions, relates to the arrival of vessels at the port of New York, and the price of silks in the months of September, October and ¡November, in the year 1865, and the months of January and February, 1866 and these exceptions mentioned, are based upon the proposition, that no other than nominal damages could be recovered. If, in the .determination of this appeal, therefore, that proposition be not maintained, they are of no value. It will be hereafter considered. The only remaining exception to evidence, relates to the refusal of the presiding judge, to permit the defendants to read a portion of the answer of a witness (Hitchcock), given to the general interrogatory,— If you know any other matter or thing concerning the matters hereinbefore inquired about, declare the same as fully and minutely as if you had been particularly interrogated thereto.” The witness had been asked, at what time or times, between February 23, 1865, and July 1, 1865, and between July 6, 1865, and September 1, 1865, re-reeled silk of the kinds known as Cumchuck, Loong-kong or Kowkong, or any of them, and which of them, could have been obtained for, at, or under $525 per picul, and he had answered the question, stating what he knew on the subjects to which it related. When the general interrogatory was asked, he proceeded to state what he thought in reference to the time when the contracts were made for the silk, and also certain inferences or conclusions of his on the subject, and thus to give an opinion which was not sought. He had no authority for this procedure. He was asked to state what he knew, and not for his opinions, inferences, or conclusions from facts and circumstances, or either. The exclusion of the answer was therefore proper.

This summary brings us at once to the consideration of the requests made and refused, and they will be taken up in the order in which they were presented on the points. The "first is as follows : That it had been affirmatively proven, that there was no vessel in which defendants could have shipped silk from China to an Atlantic port in the Hnited States, even if they could have obtained the same under the said order of December twenty-third, prior to July 1,1865, by reason whereof, the plaintiffs failed to establish negligence of the defendants, because of their failure to purchase and ship the same prior to that date. The answer to this is, that the Court of Appeals having declared a prima facie case to have been established, upon evidence similar to that given on this trial, it became the duty of the court to submit the question involved in the request, to the determination of the jury. The letter of the defendants, of the fourteenth December, contained no statement of their inability to procure freight, and their silence is easily understood. They had failed'to purchase the silk, and having done so, there was no occasion to seek a ship for any purpose connected with it. The inference and conclusion, therefore, may be fairly drawn, that they did not do so, not only from the fact stated, but from the absence of all proof on their behalf, that they sought to ascertain whether a place could be obtained for such freight, as the bulk of silk properly packed would create. It must be further said, that there were at least three vessels loading, the Thorkeld, Benefactor and Nordstern, in which the defendants, if they had the silk, might, by proper diligence, have obtained freight. It is true that the defendants state that they applied for freight in the Thorkeld and it was refused,'but it does not appear what kind of freight was mentioned, or its bulk or amount. It is true, also, that it appears from the statement of Mr. Taylor, that the Nordstern and Benefactor were engaged exclusively by his firm, and would not take outside freights, but this testimony is a negative statement of what would have been the corarse of his firm in the past on the subject, when, with proper inducements, they might have accepted the silks for transportation in one or both of their ships. It is by no means conclusive evidence that, at the time the vessels were loading, the defendants might not have obtained freight in one or both of them. But there is in the case still more than this. In the circular of the defendants, dated 28th June, 1865, they say: Freight still continues very weak, with no prospect of improvementand, after mentioning several vessels on berth for London, say also: “ The Thorkeld is engaged full for New York, having taken a small quantity of outside freight.” These various elements of the plaintiff’s case made it imperative upon the court to submit the question to the jury. If they believed the evidence of the defendants, who testified as stated, then their duty was plain, but on the case as presented, they were not bound to do so, and hence the necessity of leaving the question to them. The court, by the request, was asked to consider the apparent infirmities created by the letter of the fourteenth December, the evidence of the presence of the vessels referred to, and the additional statements of the defendants, to reconcile them, or to draw a conclusion from them all, and thus usurp the province of the jury.

This request was not granted, and it is very clear that the ruling was entirely correct. The second request was as follows: “ The burden of proof is upon the plaintiffs, to establish that the defendants were guilty of negligence, in failing to perform this duty ; and, to establish such negligence, they must affirmatively prove, not only that the defendant might have purchased the said silks at the price, and of the quality mentioned in said letter of December twenty-third, and have shipped the same, and obtained bills of lading therefor prior to the 1st day of July, 1865, but that their failure so to do was the result of negligence, and of the absence of that care, diligence and skill, which is ordinarily possessed by persons of common capacity, engaged in the same business.” The court properly refused this, and the views expressed in regard to the request already considered, apply here. The proof given on behalf of the plaintiffs, having established a prima faoie case, resting, as it did, on the confessions of the defendants, in the letter of the fourteenth of December, the burden was shifted by it to the defendants, as the judge properly charged in connection with that request, and it became their duty, therefore, if they wished to avoid the consequences of their neglect, to satisfy the jury of their diligence and good faith. The jury were, however, instructed that, if they found that there was an opportunity for the defendants to have had the contracts made, and to have obtained the silk, and to have had it shipped by the first of July, then they were guilty of negligence; otherwise they were not guilty under the limit of that date, and thus, in effect, though not in terms, perhaps, the request was granted, substantially. The defendants also asked the presiding judge to charge, that the plaintiffs had failed to show that the defendants were guilty of negligence, in failing to purchase and ship silks prior to July 1, 1865, or after such date and prior to September first, in accordance with the terms of the letter of December 23, 1864, or May 2, 1865, and this was properly refused. It required the court to take the whole case from the jury, and to decide the disputed questions of fact. It was also double in substance, and in propositions, one of them being a repetition of the first request considered herein, relating to the limit of the first July, and already shown to be untenable, and for that reason could not be entertained. The defendants further requested the court to charge that: To entitle the plaintiffs to any damages, the jury must be satisfied that the defendants could, with reasonable diligence, and in the ordinary course of business, have contracted for, got into possession of, and shipped by a certain sailing vessel, shown to have arrived in this country, the merchandise ordered within the plaintiffs’ limits, in accordance with the terms of such one of the letters of credit as was in force at the time when they should have so acted. And again: If the jury should be satisfied that, in respect to any of the merchandise ordered, the defendants were guilty of negligence, they are not liable in any event for more than the difference between the cash, market value, at the time of arrival here of such ship, as it is sho-wn could have brought such merchandise under the terms of the letter of credit, and the cost of so much only of such merchandise as should have come by that particular ship. The proposition involved in these requests, is not that the plaintiffs are not entitled to the difference between the cost of the silk and the cash market value here, but that this rule of damages cannot be applied, save on proof that a certain sailing vessel which could have brought it under the terms of the letter of credit, arrived in this country, and then only to so much of the silk as might have come by that particular ship. This is not an effort to have this case governed by the rules of law relating to a marine trespass. It is an attempt to establish the necessity of a strict line of proof, for which there is no precedent, and which seems to be altogether too exacting. It would throw the burden upon the plaintiffs, of proving that a certain vessel, shown to have arrived in this country, could have been obtained to carry the silk, and could have brought it under the terms of the letter of credit. They were not under obligations to do so. It was enough for them to show that a vessel or vessels were loading in China ports, bound for this country, in which, or in any one of which, the defendants, with proper diligence, could have obtained freight for the silk. This element of their case was complete, prima facie, with proof that a vessel or vessels were in such ports, taken in connection with the defendants’ letter of the fourteenth of December, and indeed without it. The plaintiffs were not bound to show that, by inquiry of the owners or consignees of such vessel or vessels, ship or ships, that the defendants could have “ got into possession ofj and shipped by, ” any one or more of them, the silk which they undertook to purchase. We were not referred, on the argument, to any adjudication requiring such strict line of proof, and it seems apparent that it could not be demanded. There is, nevertheless, evidence showing the arrival in this country of the Thorkeld, Benefactor and Nor ds tern, which meets- a part of the requests just considered. The rule of damages adopted by the court, namely, the difference between the cost of the silk laid down in New York, and its market value at New York at the time it would have arrived in the usual course of trade, was correct. The courts of this State have decided that a loss of profits, within the contemplation of the parties at the time of entering into the contract, and a direct consequence of the breach, and not speculative or contingent, may be recoverable ; and, in cases kindred to this, it has been held, elsewhere, that the principal is entitled to recover the value of his intended purchase, at the port of destination, The correspondence between the parties to this controversy, shows conclusively that a loss of profits was within their contemplation. The whole transaction was a perfectly legitimate one in a mercantile point of view, in which the plaintiffs sought to purchase for profits to be made, and in which the defendants perfectly well understood the object of the purchase, and the nature of the enterprise. The damages were not speculative or contingent. The price of the merchandise abroad, with the expenses of delivery here, and its market value here, easily ascertainable, after the expiration of the usual and ordinary time for transportation, would give the exact profit to be realized. The article to be purchased was a well known staple, though subject to the vicissitudes or exigencies of the market, when exposed for sale. The tabular statements, made up upon various hypotheses, covering the periods, properly considered, but which were objected to, were intended to supply the information to the jury, of the cost of the silk, and were proper under the rule of damages adopted by the court.

The principle of the rule declared, applies as well to carriers, as to the parties contracting in relation to the goods. It has been held, that, even in the absence of any special contract, a common carrier is bound by implication of law, to transport merchandise within a reasonable time, and if he fails to do so, the measure of damages- is the difference in its value at the time and place it ought to have been delivered, and at the time of its actual delivery.

This may embrace a profit to be made. The requests thus considered, are all that were argued, although others were refused, but they are either kindred to these considered, or valueless, and so regarded.

We discover no cause for disturbing the judgment herein, and it should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

       See 50 N. Y., 27.

       Griffin v. Colver, 16 N. Y., 494, 495; Masterson v. The Mayor, 7 Hill, 61.

       Ryder v. Thayer, 3 La. Annual, 149; Bell v. Cunningham, 3 Peters, 69 ; see also Borries v. Hutchinson, 18 C. B. (N. S.), 445.

       Ward v. N. Y. Cen. R. R. Co., 47 N. Y., 29.


author: Daniels J.:

text:
    EDWIN W. BARSTOW and others, Appellants, v. HANS J. HANSEN, Impleaded, etc., Respondent.

      Discharge in bankruptcy—when allowed to be setup in supplemental answer — Laches—Judgment—lien of.

    On the 6th of July, 1866, the plaintiffs recovered judgment in this action by default. Subsequently the defendants secured leave to answer, the judgment to stand as security. An answer was served November 13th, 1867, and on the 26th of October, 1868, the defendant Hansen was discharged as a bankrupt. In February, 1871, a trial was had, and a verdict recovered by the defendants, which was set aside by the justice holding the circuit. On the 12th of June, 1874, as the cause was about to come on for trial, an order was made allowing the defendant to set up his discharge by way of supplemental answer, without prejudice to any lien the plaintiffs had upon any real estate under and by virtue of thdb judgment, standing as security. On appeal from this order, held, that the effect of the order was to entirely destroy any lien which the plaintiflfe might have on the real estate of the defendant, by virtue of the judgment.

      The discharge of the debt must abrogate the lien which the judgment created for its payment; for without the debt, there could be no judgment.

      Held, further, that the lapse of time was so great, between the period when the discharge was granted, and the application made for leave to plead it as a defense, that the motion should have been denied for that reason.

      Medbury v. Swan (46 N. Y., 210) followed.
    Appeal from an order made at Special Term, allowing the defendant, Hansen, to set up his discharge in bankruptcy by way of supplemental answer.
    The facts are stated in the opinion.

      Erastus Cooke, for the appellants.

      Frank Rudd, for the respondent.
   Daniels J.:

This action was brought to recover the amount of a promissory note, made by the defendant. Judgment was recovered in it by default, on the 6th day of July, 1866. Upon a motion, afterward made, the defendants secured leave to answer, but the judgment was permitted to stand as security for the plaintiff’s demand. The answer was served on or about the 13th of November, 1867, and the defendant was discharged as a bankrupt, on the 26th of October, 1868. In February, 1871, a trial was had on the issue joined by the answer so served, and a verdict recovered by the defendants, which was set aside by the justice holding the circuit. As the cause was about to come on for trial again, and on the 12th of June, 1874, an order was procured on the part of the defendant, for the plaintiff to show cause, why he should not be allowed to set up Ms discharge, by way of supplemental answer. And upon the hearing of the motion, the order appealed from was made, allowing that to be done, without prejudice to any lien the plaintiffs had upon any real estate, under and by virtue of their judgment standing as security. This reservation seems to have been made in view of the protection given to creditors’ liens upon the bankrupt’s property, by virtue of section 20 of the bankrupt act. That section secures to the creditor the benefit of a legal lien, although beyond that, the debtor may be discharged from the residue of the debt, under the other provisions of the act. And it was apparently for the purpose of preserving the advantage secured in that respect by the entry of the judgment, that this clause was inserted in the order. The object seems to have been to carry out the intent of this provision, by allowing the debtor to defeat the recovery of the ■debt, so far as it should prove unsecured by the lien, and at the same time securing the creditors all that they could collect, after establishing their claim as a legal demand, at the trial of the cause, by means of enforcing such lien. But this the order did not accomplish. For if the discharge should prove to be valid, it would completely defeat the creditor’s right to recover any portion of the debt, as the order has allowed it to be pleaded. That must necessarily subvert the judgment, and the lien as well, because that is simply one of its incidental consequences.

Both objects mentioned in the order, cannot be attained by means of its provisions. The discharge of the debt must abrogate the lien which the judgment has created for its payment. For, without the debt, there can be no judgment. If this result had been manifested when the order was made, it would probably have been refused ; because the court seems to have been actuated with the purpose of first securing the plaintiffs the full benefit of the lien acquired by virtue of their judgment, and, after that, allowing the defendant to avail himself of his discharge. This was in harmony with the equity maintained by the section of the bankrupt law, already cited. And it would have preserved the substantial rights of both debtor and creditors, if it could have been rendered successful. But, as both results cannot be secured, the order ought not to be allowed to stand; particularly as the affidavit of the plaintiff’s counsel affirms the lien to be on sufficient property to pay the entire amount of the debt. It would contravene the policy of the bankrupt law, to allow the discharge to be made use of in such a way as to defeat the security afforded by means of a lien, which, if properly enforced, would result in satisfying an honest debt. There is no justice in depriving the creditors of the lien which they have acquired by their diligence, as long as the act under which the defendant procured his discharge, has provided for its protection and satisfaction out of the debtor’s property. And that will be done under this order, if the discharge can be used, by means of a supplemental answer, for the purpose of defeating the action brought to recover the debt. The lien already acquired, cannot survive the establishment of that result. In this respect, the order seems to have been made under a misapprehension as to the effect it would have upon the rights actually acquired by the creditors. For it is evident that it was supposed, that the discharge could be used as a defense without imparing the creditor’s lien, so far as it had attached to the property of the bankrupt. Without that conviction, it may be reasonably inferred from the terms of the order, that it never would have been directed. But, aside from this infirmity in the relief provided, the lapse of time was so great, between the period when the discharge was granted, and the application for leave to plead it as a defense, that the motion should have been denied, for that reason. The intervening time exceeded five years, and, during its continuance, a trial of the action was had, without the least effort on the part of the defendant to avail himself of the discharge, or for leave to allege it as a defense to the action. In the case of Medbury v. Swan, the delay did not exceed fifteen months, and yet the court, for that reason, in the exercise of its discretion, denied the defendant’s motion for leave to present it as a defense by way of supplemental answer. This court, in this department, affirmed that order, and its action, in that respect, received the approval of the Court of Appeals, where it was declared that the defendant’s delay was unanswerable, and no attempt had been made to excuse it.

An attempt by way of excuse was made in the affidavit, by which the motion in this case was supported. But it was of so lame and impotent a character, as to deserve no serious consideration. It conceded the neglect, and endeavored to excuse it by information derived from the clerk of the defendant’s attorney. Under the circumstances of this case, the defense proposed, would be improper and unjust. It would have the effect of defeating the security for the plaintiffs’ debt, fairly and lawfully acquired, which the design and policy of the bankrupt law entitled them to enforce. And it would award to the defendant that relief, which, by his negligence, he has deprived himself of all rights to demand.

The order appealed from should be reversed with ten dollars costs, and the disbursements incurred by this appeal.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly.

       Vol. 14, U. S. Statutes at Large, 526.

      46 N. Y., 200.


author: Daniels, J.:

text:
    EDWARD A. DARRAGH, Respondent, v. JOSEPH McKIM, Appellant.

      Ohamge of venue— Ohap. 239, Lems of l&TA—Laches.

    The provisions of chapter 339, Laws of 1873, providing for the removal of causes into the Supreme Court, and a change of the place of trial, are not affected by the unconstitutionality of that portion of the chapter, which provides for the extension of the jurisdiction of the courts mentioned in it.
    A motion to change the place of trial, for any reason, must be made with reasonable diligence after issue has been joined in the action.
    Appeal from an order denying a motion to remove this cause from the Superior Court, and to change the place of trial.

      Julien T. Davies, for the appellant.

      Edward S. Clinch, for the respondent.
   Daniels, J.:

The motion, on the decision of which the order appealed froni was made, was predicated of the practice provided by chapter 239,■ of the Laws of 1873. This was not affected by the decision madey in which it was held that so much of that chapter as provided for the extension of the jurisdiction of the courts mentioned in it, was in contravention of the Constitution of the State. The other provisions of the chapter apply to all actions pending in the courts mentioned in it, and include those of which these courts have unquestioned jurisdiction under the statutes previously enacted upon that subject. As to those actions, it provided a mode in ■which they might be removed into this court, and the place of trial changed, whenever the settled practice required that to be done. And an appeal to the General Term has been secured to the party ■ defeated on the motion, of so complete a nature as to present for review all questions before the Special Term upon the hearing of the motion. But, by the practice provided for this class of cases, no different rules have been prescribed for the disposition of the motion, than those applied by this court for the decision of the same class of motions made in actions commenced and pending therein. By those rules, a motion to change the place of trial, for any reason, is required to be made with reasonable diligence after issue has been joined in the action. If it is not, that of itself' is a sufficient reason for the denial of the motion,

The issue in this action was joined on the 20th of September, 1873, and the order to show cause why the action should not be removed into this court, and the place of trial changed, was not made until the 8th of August, 1874. During that interval, it was noticed for trial, and placed on the calendar of the Superior Court, and two circuits have been held in the county of Queens, to which the defendant applied to have the place- of trial changed. This delay, together with the loss of these two circuits, at which this action could probably have been tried, if the motion had been promptly noticed and the change made, constitutes sufficient reason for its denial.

The order appealed from should be affirmed, with ten dollars costs and disbursements on the appeal to the respondent.

Davis, P. J., and Lawrence, J., concurred.

Order affirmed with costs and disbursements.

       Landers v. Staten Island R. R. Co., 53 N. Y., 450.

       Laws of 1878, chap. 239, § 3, 4.

       Id., §5.

         Lynch v. Mosher, 4 How., 86.


text:
    HARRIET DIETZ, Respondent, v. JOHN G. DIETZ, Appellant.

      Adultery — action for divorce on account of—issues in—how tried—Code, §253.
    In this action, brought by the plaintiff to obtain a divorce on the ground of adultery, the defendant moved for a perpetual stay of the plaintiff’s proceedings, upon the ground that in a previous action for a divorce brought by the defendant in the Superior Court, the plaintiff herein was found guilty of adultery. The fact of this preceding adjudication was alleged by way of defense in the defendant’s answer. Held, that the motion was properly denied. The pleadings in this action having resulted in an issue of fact, it must be tried in the manner prescribed by the Code, and not by way of special motion on petition and affidavit.
    Appeal from an order denying a motion made by the defendant for a perpetual stay of plaintiff’s proceedings in this action.
    The facts are stated in the opinion.

      Charles Jones, for the appellant,
    cited Smith v. Amer. Life Ins. and Trust Co. (Clarke’s Ch., 307); Lane v. Clark (id., 309); Schell v. Erie R. Co. (51 Barb., 368); Dyckman v. Kernochan (2 Paige, 26).

      William H. Gale, for the respondent,
    cited Springsteen v. Powers (4 Robt., 624); Thursby v. Mills (1 Code R., 83); Schell v. Erie R. Co., 4 Abb. (N. S.), 287.
   Daniels, J.:

The defendant’s motion for a perpetual stay of the plaintiff’s proceedings, was made upon the ground that, in a previous action brought by the defendant against her, in the Superior Court, she was found guilty of adultery herself, and therefore not entitled to a divorce on account of the adultery of her husband. The fact of this preceding adjudication, is alleged, by way of defense, by the defendant in his answer. And that will, when proven, entitle him to a judgment in his favor, unless the plaintiff can relieve herself from its effect, by proof of some other fact. In her complaint, she charges acts of adultery by the defendant, committed since the issue was joined in the preceding suit. And she may, possibly, be able to entitle herself to a judgment in her favor, if she can establish the truth of that charge, and give such other proof as her case may require for that purpose. Whether there is any probability that she may succeed in her action, notwithstanding the decision against her in the other case, it is not now necessary to consider. This is not the proper mode of determining that point. The law has provided and assigned a different course of proceeding for that purpose. The pleadings have resulted in a complete issue of fact, and the prescribed mode for trying that, is not by way of special motion on petition and affidavit. It is, by noticing and bringing the issue on for trial. The Code is explicit on this subject. Its provision is, that 11 an issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from, the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived * * * or a reference be ordered.” And a reference can only be ordered, when the consent of both parties has been secured for it, where the action is brought for a divorce. Ho other mode for trying and determining the issue joined in an action for divorce, has been prescribed or sanctioned by the provisions of the Code, regulating the mode in which civil actions are to be tried.

If the motion made by the defendant could prevail, every defense, resting on a former adjudication, could be tried by the court, on special motion. That proceeding is only proper when an order is to be applied for, not when a judgment upon an issue of fact, is what the nature of the case requires. If the application in this case could prevail, the principle sanctioning it could, with equal propriety, be so far extended as to include all defenses capable of being conclusively sustained by documentary proof.

The practice of the courts is against that mode of proceeding. And it has been rendered so by legislative action prescribing the manner in which issues of fact are to be tried and disposed of. The order appealed from was correct, and it should be affirmed, with ten dollars costs, and the plaintiff’s disbursements on the present appeal.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly.

      §253.

      § 270 of Code.


text:
    JAMES K. SPRATT, Appellant, v. GEORGE C. HUNTINGTON, Respondent.
    Contempt— Code, § 401, sub. 7 — A pa/rty to cm action cannot be required to make an affidavit to be used by opposite pa/rty on a motion.

    Subdivision 7, of section 401, of the Code was not intended to modify or repeal the prohibition as to the examination of parties to an action, contained in section 389, and under it, a party cannot be required to make an affidavit at the instance of the other party, to be used on the hearing of a motion.

      Cockey v. Surd (36 ÍT. Y. Superior Ot., 43) and Fisk v. Chicago & Sock Island B.

      B. Co. (3 Abb. [2ST. S.], 430) not followed.
    The fact that a party is in contempt, for disobeying an order requiring him to appear before a referee and make an affidavit, does not prevent him from moving to vacate that order on the ground that it is irregular. A party in contempt is prevented from applying for a favor, resting, to some extent at least, in the discretion of the court, but not from applying for that to which he is entitled as a matter of strict right.
    Appeals from two orders, one adjudging the plaintiff in contempt, the other denying a motion to set aside an order made for the examination of the plaintiff.

      H. Brewster, for the appellant,
    cited Johnson v. Pinney (1 Paige, 646); Palmer v. Adams (22 How., 375); Brooks v. Schultz (5 Rob., 656); Moses v. Banker (7 id., 131).

      J. H. Whitelegge, for the respondent,
    cited Fisk v. Chicago & Rock Island R. R. Co. (3 Abb. [N. S.], 430); Ramsey v. Gould (57 Barb., 398); Ramsey v. Erie R. R. Co. (8 Abb. [N. S.], 174.)
   Daniels, J.:

An order was procured by the defendant, without notice, requiring the plaintiff to appear before a referee, and make an affidavit to be used by the defendant upon a motion to be made by him in this action. He did not make the affidavit, and a further order was made, on notice to him to appear and do so, and providing for his punishment in case of further disobedience on his part. The plaintiff then moved to vacate the first order, as irregular, and that motion was denied. From these two orders, the plaintiff appealed to the General Term.

The fast that the plaintiff was nominally, as well as actually, in contempt, for disobeying the order requiring him to appear before the referee and make his affidavit, did not prevent him from moving to vacate that order, if, in fact, it was irregular. For, if that was its character, he was entitled, as a matter of strict right, to have it set aside. A party in contempt is not precluded from making such an application, but merely from applying for a favor, resting, to some extent at least, in the discretion of the court.

And as the order requiring the plaintiff to appear before the referee and make his affidavit, was made ex parte, the only mode in which he could be relieved from it, was by a motion made to vacate or set it aside. He was directly affected by the order, and if it was irregularly made, he had the right to have it set aside. The motion wa’s properly made by him, and could have been made by no other person, And, as already shown, the order directing him to appear, made in the motion for his punishment, did not prevent him from making the application he did, to vacate the first order. One of the appeals is from the order giving such direction, and that order is consequently under the entire control of this court. .And for the purpose of determining the disposition which should be made of it, the question must first be considered, whether the motion to vacate the order requiring the affidavit from the plaintiff, was properly denied. And the solution of that question depends upon the power of the court, to require one party to make an affidavit at the instance of the other party, to be used on the hearing of a motion. In the case of Cockey v. Hurd, it was held that the court did possess that authority. This case was decided upon very full consideration, and being decided by the General Term of a co-ordinate tribunal in this city, should be followed, for the purpose of securing uniformity in the practice of the courts, unless it clearly appears to be erroneous. To a considerable extent, its effect is impaired by the circumstance, that two of the learned judges of that court have reached a different conclusion, in carefully considered opinions one of which was delivered since Cockey v. Hurd was decided.

The decision receives some support from the case of Fisk v. Chicago & Rock Island R. R. Co. But it is exceedingly slight, because the point, though decided, was not to any extent-made the subject of examination. Before the enactment of subdivision 7, of section 401, of the Code, the affidavit of a party could not be compulsorily procured by his adversary, for the purpose of enabling the latter to use it upon a motion; and the General Term of the Superior Court of New York, in deciding Cockey v. Hurd, derive the authority exclusively from that subdivision; and it is substantially placed upon the ground that it modified or repealed the precedent prohibition contained in section 389 of the Code. A mere modification it could not be very well, for that section declares that a party shall not be examined on behalf of the adverse party, except in the manner prescribed by chapter 6 of the Oode^ and that merely provides for his examination as a witness in the action. If subdivision 7, of section 401, has liad any effect on this prohibition, it has repealed it altogether. Nothing less than that could possibly be done, and at the same time provide for a different mode of examining a party. If, under subdivision 7, of section 401, a party can be so far examined before a referee as to be required to make an affidavit at the instance, and for the benefit, of the adverse party, then a different mode has been provided for the examination of a party than that prescribed by chapter 6 of the Code. And the prohibition that it should not be done has certainly been repealed. But if it has not been repealed, then subdivision 7, of section 401, should be so construed as not to include parties to the action.

The prohibition restricting'the examination of one party at the instance of another, to the mode prescribed by chapter 6 of the Code, has not been expressly changed or modified since 1848, when it was enacted ; and that, certainly, is very cogent evidence that the legislature has, at no time, designed to effect any change in the restriction imposed by it. By the enactment of subdivision 7, of section 401, no indication was given of the existence of any legislative purpose to change it. All that was then done upon this subject, was, to declare that section 401 should be amended, by adding to it what is now subdivision 7. It simply provided for making an amendment, by way of an addition to one section, without indicating the existence of any purpose for changing any other section by doing that, and that it did not change the prohibition contained in the preceding section 389, is well settled by the principle of construction restraining statutory repeals by implication.

The addition made by the amendment to section 401, was, in no just sense, repugnant to the prohibition contained in section 389. Both can very well stand together, and, where that can be done, no repeal by implication is effected by a later enactment. By subdivision 7, of section 401, the affidavit of any person may be secured in favor of any party requiring it, to make or oppose a motion ; and, at the same time, parties can only be examined in the manner prescribed by chapter 6 of the Code. No difficulty stands in the way of maintaining both provisions at the same time. And when that can be done, the later statute does not repeal or supersede the earlier one relating to the same general subject-matter.

The rule on this subject is, that the earliest statute remains in force, unless the two are manifestly inconsistent with, and repugnant to, each other, or unless, in the latest act, some express notice is taken of the former, plainly indicating an intention to abrogate it. As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence, a repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together. ” This rule is more particularly applicable to an amendment of a system or scheme of laws, relating to one general subject like that of the Code of Procedure. And, under its application, it is quite plain that the enactment of subdivision 7, as a mere amendment of section 401, which is all that was done, did not repeal or modify the restriction imposed by the preceding section 389 of the Code. It was so held in a carefully considered opinion, in the case of Hodgkin v. Atlantic & P. R. R. Co. And for the reasons already stated, that authority should be followed instead of the decision finally made in Cockey v. Hurd.

The plaintiff was not bound to make an affidavit for the defendant, because he was a party to the action in which it was required. And his motion to vacate the order requiring him to appear before a referee to make it, should have been granted. The order directing him to appear, which was made upon the hearing of both parties, and provided for proceedings by way of punishing the plaintiff for contempt if he failed to do so, is necessarily dependent on the order denying the plaintiff’s motion to vacate the first order. If the latter is vacated, the foundation is entirely removed, on which the second order stands. It follows, therefore, that the reversal of the order denying the plaintiff’s motion, requires the entire proceeding to be annulled. That should be reversed for the reasons already given. And, as a consequence of that, the order made for taking the plaintiff’s affidavit, must be vacated, and the other order made at the defendant’s instance, and appealed from by the plaintiff, ■ specially directing the plaintiff to make the affidavit, or, in default thereof, that he should be attached and brought before the court to be dealt with for his misconduct, should also be reversed. But from the confused condition into which the practice on this subject had fallen, the orders should be reversed, and the first order vacated, without costs.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly.

       Brinkley v. Brinkley, 47 N. Y., 40.

      Ramsey v. Gould, 57 Barb., 400, 410.

      36 N. Y. Superior Ct., 42.

       See Cockey v. Hurd, 12 Abb. (N. S.), 308; Knoeppel v. Kings Co. Ins. Co., 47 How., 412.

       3 Abb. (N. S.), 430.

       Palmer v. Adams, 22 How., 375.

        Supra.

      Laws of 1868, 858, § 38.

       Bowen v. Lease, 5 Hill, 221, 225, 226; McCartee v. Orphan Asylum, 9 Cow., 438; Hayes v. Symonds, 9 Barb., 260; Van Rensselaer v. Snyder, id., 303.

       Powers v. Shepard, 48 N. Y., 540.

       5 Abb. (N. S.), 73.

         Supra.


text:
    THE PEOPLE ex rel. CHARLES TULL, Respondent, v. PETER KENNY, Appellant.

      Contempt—order adjudging pan'ty guilty of—Irregulmity—when waked—must he specified in notice of motion.

    Where an order was made, requiring the defendant to appear at a certain time and place specified, to show cause why he should not be attached for a contempt; on the return of which, an order was made adjudging him guilty of contempt, and directing his punishment therefor; and it did not appear that he was misled or failed to appear, in consequence of the use of the term “ attached,” in place of “punished; ” held, that, as the use of that term did not appear to have prejudiced the defendant, and as the order to show cause had failed to specify the irregularity, as required by Buie 46, that the order should be affirmed.
    Appeal from an order, denying a motion to set aside an order directing the punishment of defendant for contempt, committed by failing to appear and submit to an examination concerning his property, in proceedings supplementary to the return of an execution unsatisfied, issued against property.

      H. C. Denison, for the appellant.

      Tremain & Tyler, for the respondent.
   Daniels, J.:

The order which the motion was made to vacate, was made on the return of an order requiring the defendant, to appear at a certain time and place specified, and show cause why he should not be attached as for a contempt; and it is claimed to have been irregular, because it did not require him to show cause why he should not be “ punished ” as for a contempt. The latter is no doubt the most preferable and correct form of proceeding. But from the affidavit accompanying the order to show cause, it clearly appeared that the proceeding was instituted on the fact of his neglect to appear and be examinéd, as he had been required by the original order made. And the defendant does not claim that he was misled, or failed to appear and oppose the application, or excuse his default, in consequence of the use of the term, “ attached ” in place of the more appropriate term, “punished.” The object of the order was to give him notice of the proceeding intended to be taken against him, so that he could appear and defend or excuse himself, in case he desired to do so. And no reason exists for supposing that he failed to do that, because of the informality now complained of. And nothing has been shown by him, which would justify his omission to appear when he was first required to do so, or excuse him from answering, if he had appeared on either occasion. The defect relied upon, in support of the motion, was, at most, an irregularity which was not shown to have prejudiced the defendant in any way whatever. The import of the order requiring him to appear and show cause, was that he was to be proceeded against for his previous default. And that afforded him good reason for believing that he would be punished, unless his default was justified or excused at the return of the order.

As an irregularity, the order to show cause should, in terms, have specified it, as the ground on which the motion would be made. That was required by the forty-sixth rule. It did not do so, and for that, as well as the other reasons mentioned, the motion was properly denied.

The order should be affirmed, with ten dollars costs, besides disbursements.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly.


text:
    WILLIAM B. WHEELER, Respondent, v. WALTER BRADY, Appellant.

      Order of arrest—within what time motion to vacate, must be made — lecme to renew motion, does not extend time.

    Within twenty days after the entry of judgment in this action, an order was made, denying defendant’s motion to vacate an order of arrest granted therein, but allowing defendant to renew the motion. After the expiration of the twenty days, the defendant renewed the motion, which was denied. Held, that the first order did not operate to extend the time to apply to vacate the order of arrest, and that the second application, being made after the expiration of the time prescribed by the Code, was properly denied.

      Appeal from orders denying motions made to vacate an order of arrest.
    This action was brought on a promissory note for $2,000, and an inquest was taken therein on the 12th of June, 1874. On the nineteenth day of June, the plaintiff procured an order of arrest, on the ground that the defendant had disposed of his property with intent to defraud his creditors. The defendant was arrested on the 20th of June, 1874, and, on the twenty-fourth, judgment was entered in favor of the plaintiff. On the eighth of July, an order was made denying a motion on behalf of the defendant to vacate the order of arrest, with leave to the defendant to renew the motion. Under the leave granted, the defendant, on the thirtieth of July, renewed his motion on further papers. This motion was heard on the third of August and denied. It was reargued and again denied on the seventeenth of August. From this last order and the order of July eighth, the defendant appealed.

      J. Langdon Ward, for the appellant.

      Ely & Smith, for the respondent.
   Daniels, J.:

The order to show cause, under which the last motion was made to discharge the defendant from arrest, was neither made nor served until long after the expiration of twenty days from the time when the judgment in the action was entered. It consequently was not made within the time prescribed by the Code of Procedure. The appellant claimed that the order allowing the motion to be renewed, extended the time, within which, by the provision referred to, it was required to be made. But as the order was made before that time had expired, and contained nothing whatever, indicating it to be the purpose of the court to extend that time, this position cannot be sustained. The second motion was very properly denied on that ground, even if the additional affidavits, if they had been presented in time, made out a case requiring the discharge of the order of arrest. The papers before the court on the first motion, showed that the defendant was actually insolvent; and when he had reason to expect that some of his creditors’ demands would soon be in judgment against him, he conveyed away the only property which he had at that time, that could even be supposed to be worth something over the incumbrances upon it, to his daughter and his attorney. The time and manner of the conveyances, and the persons to whom they were made, together with the defendant’s insolvency, were sufficient to j ustify the conclusion deduced by the Special Term, that the intent prompting them on the part of the grantor, was to place what little property he had, out of the reach of any judgments which might be recovered against him. That intent, when it clearly exists, is not ordinarily avowed by the debtor; on the contrary, his endeavor is to obscure and conceal the evidences of its existence; and, when it is discovered, the most that can be expected, is, that it may fairly and reasonably be inferred from the circumstances attending the disposition of the debtor’s property. The conclusion that it did exist, was sufficiently warranted by the affidavits presented in this case.

The orders should be affirmed, with ten dollars costs in each appeal, besides disbursements.

Davis, P. J., concurred.

Ordered accordingly.

       §183.


author: Davis, P. J.:

text:
    DAVID RISLEY, Respondent, v. THE PHŒNIX BANK OF THE CITY OF NEW YORK, Appellant.
    Complaint— amendments to — Statute of limitations.

    Where a proposed amendment to a complaint, consists in the addition of new matter, relating to the subject-matter of the action already set out in the complaint, and is not a separate and independent cause of action, new and distinct in its nature and particulars, the fact that the statute of limitations may have run, pending the suit, and that defendant will not be at liberty to plead that statute in bar, is not sufficient to prevent the court from allowing the amendment.
    Appeal from an order of the Special Term, allowing an amendment to the complaint.

      This action was brought on a check or draft, drawn in May, 1861, by the Bank of Georgetown, South Carolina, in favor of the plaintiff upon the defendant, with which the said Bank of Georgetown then had more than the amount of the check on deposit, on the ground that, by custom and agreement, the defendant undertook to pay the checks of the Bank of Georgetown, to the extent of the funds' which it had on deposit for that bank, and upon the further ground, that the Bank of Georgetown had assigned to the plaintiff the funds in the defendant’s hands, to an amount equal to the sum mentioned in the check. The proposed amended complaint set up as new matter, a promise on the part of the defendant, on the presentation of the check, to pay the amount thereof.

      Edgar S. Van Winkle and Flamen B. Candler, for the appellant.
    The amendment should not be allowed, as it will cut off the defendant from the defense of the statute of limitations. (Sheldon v. Adams, 18 Abb. P. R., 405.)

      Beebe, Wilcox & Hobbs, for the respondent.
   Davis, P. J.:

The amendment proposed, consisted of allegations to be inserted in the complaint, to the effect that when the check which was the subject of the action, was presented to the bank, the defendant, by its cashier, admitted the possession of funds to meet the same, and promised to pay the check. It appears that evidence tending to prove the truth of these allegations, had already been put in before the referee without objection, but on application to the referee to amend the pleadings by conforming them to the proofs (as claimed by plaintiff), he held that he had no power to allow the amendment, on the ground that it would be substantially adding a new cause of action, and suggested that the application should be made to the court. There seems to us to be no doubt of the power of the court to allow the amendment, and we are of the opinion that the power was not in this case improvidently exercised. Proper terms were imposed; and the condition of the order that the witness, who had already testified to the alleged facts, should be produced for cross-examination, will operate to prevent any unjust effect that might otherwise arise from the application of the testimony already in, to the new phase of the case. Where a proposed amendment is the addition of new matter relating to the subject-matter of the action already set out in the complaint, and is not a separate and independent cause of action new and distinct in its nature and particulars, the fact that the statute of limitations may have run pending the suit, and that defendant will not be at liberty to plead that statute in bar, is not sufficient to prevent the court from allowing the amendment in the exercise of its sound discretion.

We think the order should be affirmed, with ten dollars costs of this appeal, besides disbursements.

Daniels and Lawrence, JJ., concurred.

Ordered accordingly.