text:
    JOHN RYALL, Administrator, etc., Plaintiff and Appellant, v. JAMES KENNEDY, Defendant and Respondent.
    I. VESSELS."'
    1. Negligence of officers.

      (a) Steward, what is negligence by.

    1. When, for the purposes of fumigation, under the direction of the health officer, the steward (as is his duty) clears the passengers from the steerage, and furnishes the health officers with the drinking vessels of the passengers, in which to put the fumigating compound, being a poisonous substance, and, after the fumigation, orders the passengers back to the steerage without having removed the drinking utensils, or seeing that they are thoroughly cleaned, he knowing the character of the fumigating substance, is guilty of negligence.

      (b) Passenger, what is not contributory negligence.

    1. A mother allowing one of her children, of five years of age, to play about the steerage, in her presence, she not knowing' any deleterious substance to be contained in the drinking vessels, is not guilty of contributory negligence.

      (a) This although she had seen the child take the cup to drink out of it.
    (c) Captain of merchant vessel, liability of.

    1. He is personally liable for injuries caused by the negligence of his subordinates during the voyage, among them the steward.

      (a) Public armed vessels. The position of the captain of a public armed vessel is different from that of the captain of a merchant vessel.

      (d) Voyage, when not ended.

    1. Not until the vessel is moored at her point of destination. The master’s liability continues until then.

      (a) Health officer, visit of does not relieve the master.

    1. It does not divest him of his general power and control.
    H. DEATH.
    1. Action fob damages fob death caused by negligence.
    (a) What not necessary to maintain

      1. Special pecuniary damage is not.

      (b) By whom to be brought.

    1. Only by a representative of the deceased appointed by a court having jurisdiction.
    IH. DOMICIL AND HABITATION.
    1. Infant.

      (а) Its domicil and habitation follows that of its father', and after the death of the father, that of its mother, in the absence of fraud, until her re-marriage.
    3. What sufficient to constitute a domicil ob habitation.
    («) Prima fade’evidence. Being at a place is prima facie evidence of a domicil.
    (б) Where one came to the city of New York as an emigrant, and resided there for seven months, when he was joined by his wife and children, except one which died on the voyage, and he and his family continuously resided in the city of New York for five years,

      Held,

    that he was an inhabitant of the city of New York at the time of the death of the child which died on the voyage, the prima facie evidence not having been in any way refuted.
    IY. SURROGATE’S JURISDICTION.
    1. Upon above principles, the child at the time of its death was an inhabitant of the county of New York, although it had never been within the county. And the surrogate of Hew York had jurisdiction to grant letters of administration on its estate.
    Before Curtis and Sedgwiok, JJ.

      Decided February 7, 1876.
    Appeal from a judgment dismissing the complaint.

      The plaintiff sues as administrator of his son, an infant, aged four years and nine months at the time of his death, to recover, under the statutes of 1847, chap. 450, and 1849, chap. 256, for the pecuniary injuries suffered by the next of kin of the deceased, by reason of his death.
    The plaintiff left London, England, in July, 1870, and since the 27th of that month has resided in the city of ¡New York. On March 2,1871, his wife and his two .children, one being the deceased, and the other aged three months, sailed in the steamship City of Brussels, commanded by the defendant, to join him.
    Upon March 12, the ship arrived in this port, and. having small-pox on board went to the quarantine anchorage, opposite the quarantine station on Staten Island, about a quarter of a mile from the Staten Island shore west of the main channel. The health officers came on board, and, after clearing the cabins of all the passengers, and ordering them on deck, fumigated the ship. The material used on this occasion to fumigate the ship was a deadly poison, and was distributed around the cabins in basins and in the passengers’ pannikins, which are their drinking cups. The health officers, closing the cabins, and leaving instructions as to the length of time they should be kept closed, and as to the removal of the vessels, left the ship, and went on shore. In about an hour after, the head-steward of the ship came and ordered the plaintiff’s wife and two children down into the cabin, where, after remaining about half an hour, her little boy, the deceased, came running and crying to her, with a pannikin in his hands, with his tongue protruding from his mouth, thick and white, having drank the contents of the pannikin, which turned out to be some of this deadly poison which had been used to fumigate the ship. The steward came into the cabin and took the pannikin and threw it out of the port-hole, and said, “My God ! it is poisoned! ” and took the child to the ship’s hospital, where he died in about three hours after, from the effects of drinking this deadly poison from a drinking-cup carelessly and negligently left standing in the passenger’s cabin.
    Letters of administration were granted on the infant’s estate by the surrogate of New York county, to the plaintiff.
    The defendant was not in any way interested in the steamship, as owner or otherwise, further than being the captain.
    Steamships are fumigated in pursuance of statutes of this state.
    At the close of the plaintiff’s case, a motion was made to dismiss the complaint, which was denied at that stage of the case ; but after the testimony of the defendant had been introduced, the motion for judgment and to dismiss the complaint was renewed and granted.

      Salter & Cowing, attorneys, and of counsel for appellant, urged :
    I. The master of a ship is personally liable to third persons for any damage happening to them by reason of the negligence of himself or his mariners [Shearman & Redfield on Negligence, p. 131, sec. 113 ; Dennison v. Seymour, 9 Wend. 1; Schieffelin v. Harvey, 6 Johns. 169; Foot v. Wiswall, 14 Id. 303 ; Abbott on Shipping, p. 231, and notes on p. 231 and 232; Watkinson v. Langton, 8 Johns. 213; Abbott on Shipping, p. 173, note).
    II. The domicil and residence of the deceased, who was living with his parents, was the same as theirs (Story on Conflict of Laws, sec. 46 ; Sprague v. Litherbury, 4 McLean, 442). At the time of the death of the plaintiff’s child, he, the plaintiff and father of the child, was actually residing in the city of New York, and the mother and her two children were on their way to join the father, to make his home their home. The domicil of the child is that of the father, which, in this case was the city and county of New York. (3 Ohio R. 101; 4 Greenleaf R. 47.) Bouvier’s law dictionary and Webster’s dictionary both define an inhabitant of a place to be “One who has his domicil in a place, or has a fixed residence in a place.” Under the above definitions, the plaintiff,4he father, and his infant son, were both inhabitants of the city and county of New York, and the Revised Statutes provide that, “The surrogate of each county shall have power to grant letters of administration of the goods, chattels and effects, where an intestate at or immediately previous to his death, was an inhabitant of his county.” Letters may be granted to a foreigner where he resides in this state. The learned justice erred in refusing to allow the plaintiff to prove that the mother came to the city of New York to join her husband, and for the purpose of taking up her abode here.
    III. In cases of this kind no proof of pecuniary or special damages is necessary (Ihl, &c., v. The 42d St. R. R. Co., 47 N. Y. 320).
    IV. There was upon the question of negligence but two questions: 1st. Was the defendant guilty of negligence ? 2d. Was the deceased free from negligence % There certainly was abundant evidence in the case to bring the case within the rule that the plaintiff was entitled as matter of right to have these issues submitted to the jury (Wolfkiel v. Sixth Ave. R. R. Co., 38 N. Y. 49 ; No. 11, New York Weekly Digest (similar case), p. 225 ; Berrhart v. Rensselaer and Saratoga R. R. Co., 32 Barb. 165; William v. O’Keefe, 24 How. 116).
    V. The plain, uncontradicted, and unimpeached evidence in this case clearly establish facts which not only show that the defendant was negligent, but that the deceased and his mother were both free from negligence; but even if the inferences to be drawn from the admitted facts would have warranted the jury in coming to a different conclusion upon either of the above propositions, yet in the case of a nonsuit they are both to be decided in favor of the plaintiff (Cook v. N. Y. Central R. R. Co., 42 N. Y. 476 ; Wolfkiel v. Sixth Ave. R. R. Co., 38 N. Y. 49).

      Platt & Gerard, attorneys, and James W. Gerard and John M. Bowers, of counsel for respondent, urged :
    I. Both the intestate and his parents had always, previously to the time of the accident, been inhabitants of England,' and though his father had come to the United States before the mother and child, he had not so ranch as declared his intention of becoming a citizen at the time of the death of his child. There is nothing in the case to show that the father, at the time of the child’s death, i.e., seven months after the father’s arrival, intended to be either a citizen or an inhabitant of this state. The recital of a necessary fact to confer jurisdiction in the letters of administration, viz., being, at or immediately previous to his death, an inhabitant of the county of New York, is absolutely negatived by the proof, as above set forth (People v. Corlies, 1 Sandf. 228; Same v. Barnes, 12 Wend. 492 ; Corwin v. Merritt, 3 Barb. 341; Paff v. Kinney, 1 Bradf. 1; Sheldon v. Wright, 5 N. Y. 497). The surrogate of New York county having, therefore, no power to issue letters to the plaintiff, on the estate of the intestate, this action can not be maintained by the plaintiff. The question of the right of a surrogate to issue letters can be raised in a collateral action, and it was proper to raise it at the trial of this action (Duchess of Kingston’s Case, 2 Smith's Leading Cases, 689, and cases cited; Bolton v. Jacks, 6 Robt. 166 ; Kentz v. McNeil) 1 Den. 436).
    II. No negligence was proved against the steward or any of the employees of the vessel. There is nothing in the case to show that it was part of the duty of the steward or any one else on the steamship to take away the vessels used by the health officers after the fumigation ; if such work was done by any. of them it was done under the direction of the health officers, in pursuance of the authority given them by the above acts, and as their representative. The performance of such work by any of the employees of the vessel was not brought home to the knowledge of the captain; it was not done with his consent or by his authority, and was not any part of the regular duties of any of the employees of such vessel—certainly not a duty with which the captain could be considered to be in any way connected.
    III. In the absence of any decision holding the captain of a vessel liable in such a case as this, the general rule that an agent, manager, or servant, is not answerable for the negligence even of those whom he has retained for the service of his employers, must apply. In such cases the action must be brought against the hand committing the injury, or against the principal for whom the act is done or not done (Dunlaps’s Paley’s Agency, chap. 6, sec. 2, p. 402; City of Buffalo v. Holloway, 7 N. Y. 493 ; and cases cited). That the master of a vessel is not liable for damage done by a subordinate officer for running down another vessel during the watch of the sub-officer, see Nicholson v. Mounsey, 15 East, 382. To the same effect is the case of Blakie v. Stembridge (6 Com. Bench R., J. Scott, 893), holding that the master is notliable for injuries resulting to the packing of a cargo through the negligence of a stevedore in stowing the same, even if the master is watching the work, the stevedore not being the servant or agent of the master, so as to render him responsible. Although by the maritime law masters of vessels have been held liable in many cases for the acts of their sub-employees, yet this exception to the general rule, as to the non-liability of agents to third persons, has been established solely on the principle that the master had supreme control of all on board the vessel. In this case, however, his authority and control of his ship had been taken away by statute, and for the time being he was without control over his steamer, and both himself and his passengers and crew were subject to the authority and directions of the health officers (Laws of 1850, chap. 275). The defendant is not the superior in this case, the steward having been employed by the owners.
    IV. In any event, the child and its mother were guilty of contributory negligence. The mother says the child was so young that she. would not let it go out of her sight, and that she never let him run away from her side. How did it happen, unless she forgot that he needed the care she describes, that he was running about behind her in the steerage and rooms, so that she could not tell where he got the pannikin from ? drinking what he pleased from the numerous dishes and pannikins lying about, either on the steerage table or in the various berths and state rooms which it was no part of the steward’s business to explore ? This testimony of the mother would seem to bring the case within the well-known provision of law, that where the negligence of the party injured in any manner, or to any extent, contributes to the production of the injury, however slightly, and without such fault on his part it could not have occurred, there can be no recovery (Redfleld on Carriers, . sec. 528, Edit; and cases cited ; Wilcox v. Rome, Watertown & Ogdensburgh R. R. Co., 39 N. Y. 358; and cases cited). And no matter how gross or evident the negligence on the part of the other party, the same rule applies (Mangan v. Brooklyn City R. R. Co., 36 Barb. 237). And that the negligent acts of the parents or custodian of a child, in reference to the care of such child, prevent a recovery, in case of his death or injury, through the negligence of other parties, to the same extent as if he were an adult, .and guilty of contributory negligence (See Wharton on Negligence, sec. 311, note, and cases cited ; Burke v. Broadway and Seventh Ave. R. R. Co. 44 Barb. 529; Flynn v. Hatton, 4 Daly, 552).
   By the Court.—Curtis, J.

The defendant testifies that he was the master of the vessel, and that his interest in her was to navigate her safely, and look after the safety of the passengers. The law imposes these duties upon him, and the duties of the stewards are, as his subordinates, to care for the comfort, nourishment, and welfare of the passengers. It is their immediate office to attend to the wholesomeness and ■cleanliness of the quarters, and of the food and of the «dishes in which it is served to the passengers. It is objected that the nature of the steward’s duties is not in proof, but it sufficiently appears in the case, that it was precisely these duties which were entrusted to the steward, and which he undertook to perform.

The health officer testifies to the -care that was taken in conducting the fumigation. He says “this involved that the steward should clear the passengers from the steerage, and keep them from this dangerous ■substance.” “ The utensils in which to pour the poison were furnished by the steward. ’’ Again, he says, “Irecollect having a conversation with the steward, Caesar, on that occasion, and on this matter; I have heard of accidents before from this poison having been drank by children on steamships ; it was since this one on the National Line. There was also a case occurred in the city, I think. I have heard of cases a number of times occurring from this fumigation.”

It was the obvious duty of the steward conversant as he was with the dangers attending this fumigation, to have seen that the vessels supplied by him, and used in it, were removed from the cabin before he ordered the passengers to return there, especially as many of the passengers were of very tender years. The exclamation he made, and what he did, when the mother called his attention to the child just after it drank from the pannikin, revealed a knowledge of the danger and a consciousness that his not having removed it before, contributed to it. It appears that neglect on his part was fully established by the evidence.

The defendant insists, that in any event the child and its mother were guilty of contributory negligence. To determine that, it is necessary to refer to the testimony. The mother, who alone of those who were present at the occurrence was examined as a witness, testifies: “When I first went down, the steward came and served us with soup for our dinner; I was then sitting at the table, and my little boy sat down and took some soup with me, and then I sat down by the table in the steerage, and nursed the baby.” ‘ ‘ My little boy was playing at the back of me with some more children.” “He was playing there a good while, and was laughing quite hearty; I was nursing the baby, and did not notice the little boy for a good while. I would not let him away from my sight; he did not run up and down the steerage except while I was sitting there.” “ He would run around the table; sometimes my back would be towards him. I had been down stairs about half an hour, when my little boy came running to me; he did not come from one of the berths, he was standing behind me, playing.” “ The panniken was on a seat by the dining-table in the steerage, where he was playing. I was sitting at the corner, and he was playing behind me, and the pannikin was on the other side. When I looked around, that is where he was standing, taking the pannikin down from his mouth. He cried, and I looked around, and he was just taking the pannikin down from, his mouth.”

So far from there being any negligence on the part of the mother, she seems to have devoted herself wholly to the care of her children. This child, nearly five years of age, was in her company at the time, playing, as was natural and proper just about her, in the cabin, where the mother had reason to consider everything safe, and the place in the vessel where the child was the least exposed to danger.

The mother was ignorant of the contents of the pannikin ; it was an ordinary tin drinking cup, and if she had seen the child take it to drink from it, as was perfectly natural and proper for the child, there is no reason to think she would have prevented the child from doing so. No contributory negligence is shown on the part of the mother, and for aught that appears in the case, the most cautious adult might have been poisoned as the child was, by this act of cruel negligence on the part of the steward. The carrier who undertakes to transport passengers of tender years, owes a duty to them, in view of their inexperience and infancy, to protect them the more carefully from danger. There was no contributory negligence shown on the part of the child.

A question is raised as to whether the master of a ship is personally liable for damages to third persons, by reason of the negligence of himself or those under him on board the ship. The master testifies that he did not employ the steward, but that he was employed, by the owners in Liverpool. From the very nature of' his position and responsibility as master of the ship,, and as this very designation of his position implies, all persons employed on board, whether by the owners or by him, are his subordinates. For wise reasons of public policy, the master is responsible as well as the owners for every injury that might have been pre. vented by human foresight and care. When the owners are unknown, or reside in a foreign country, the injured party is not obliged to search for them, but he has his remedy against the master personally, who is responsible for his own negligence, and also for that of every one of his subordinates. In consequence of this . very responsibility, the law clothes the master with power to require and compfel strict obedience to his orders.

It is no answer for him to show that his subordinates are employed by the owners and not by him. He knows the responsibility of his position, and if he is not content to acquiesce in the employment of those under him by the owners, and to incur responsibility for their negligence, then he should not accept the post, or should retire from it. His position differs from that of the captain of a public armed vessel, who has no choice as to where he shall serve, but obeys the orders of his superiors, and is obliged to take the command, though he has no voice in the appointment of any one under him, and has, perhaps, grave reasons to distrust them. (Denison v. Seymour 9 Wend. 15 and 16 ; Schiefflin v. Harvey 6 Johns. 177; Watkinson v. Laughlen, 8 Id. 167; Foot v. Wiswall, 14 Id. 307.)

The defendant’s objections that the voyage was ended, and also that he had no authority on board of the ship at the time, as she was in the charge of the health officer, seem to be met by the testimony of the health officer. The latter testified that as soon as the mixturéis made below, the gas is generated, and that he and his men come up and leave, as they have nothing else to do, and no further authority, and that usually when there is no disease on board, the anchor is frequently up by this time, and the ship is left to proceed towards Hew York at once, while the fumigation is going on.

The voyage can not be considered as terminated until the vessel is moored at her point of destination, and this brief visit from the health officers of the port, and delay, does not divest the master of his general authority and control over the vessel, and which he is bound to exercise for the purpose of facilitating this very act. The fumigation of the vessel, and the removing of the sick person to the quarantine hospital, deprived him of no authority to compel the steward, who furnishes the utensils to the health officers to pour the mixture into, to take proper care of them, after he had left, and especially when the passengers were required to descend to the cabin in which they had been used. It might as well be claimed that the boarding and presence of custom house-officers to prevent smuggling, or the enforcement of any police law or regulation, deprived the master of his authority and responsibility.

The absence of proof of special pecuniary damage to the next of kin from the death of the child, would not have justified the court in dismissing the complaint. (Ihl v. The Forty-second St. R. R. Co., 47 N. Y. 32).

It is contended that the plaintiff can not maintain this action in his representative capacity, as the surrogate of the county of New York had no power to issue the letters of administration.

The act under which this action is brought, Chap. 450, Session Laws q/1847, provides that whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, for which the person injured could have maintained an action for damages if death had not ensued, then such action maybe brought by and in the name of the personal representative of the deceased.

Consequently, this action can only be brought in the name of a representative appointed by a court having jurisdiction.

The surrogate of the county of New York has-jurisdiction by statute (2 R. S. 73,) to issue letters of administration, among other cases, in the following: “Where an intestate, at or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened.” “Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein.”

Residence and domicil generally mean the same thing. An inhabitant is defined to be one who has his domical in a place (Crawford v. Wilson, 4 Barb. 520). The term “ inhabitant” as used in the Revised Statutes is to be construed in harmony with the law of domicil (Isham v. Gibbons, 1 Brad. R. 93). Was the intestate an inhabitant of the county of ISTew York at the time of his decease ?

The domicil of an infant follows that of its father. If the father dies, it follows, in the absence of fraud, that of its mother, until such time as the mother re-marries, when by reason of her own domicil becoming subordinate to that of her husband, that of the infant ceases to follow any further change by the mother, or, in other words, it does not follow that of its stepfather (Brown v. Lynch, 2 Brad. R. 2Í8 ; 2 Kent Com. 228 and 431; Potinger v. Wightman, 3 Merivdles R. 67 ; Somerville v. Somerville, 5 Vesey, 759 ; Inhabitants of Comnor v. Nulton, 2 Salkeld, 528 ; Andrews v. Herrot, note 2, 4 Cow. 516. Story Conflict of Laws, § 46).

This rule as to the infant’s domicil, derived from the civil law, seems for a long period to have been recognized in the common-law courts. It was held, ail the judges concurring, that where a father gains a second settlement after the birth of his child, that settlement is immediately communicated to the child, and children must be sent to their father’s settlement though never there before (Reading v. Eversley, 2 Session Cases, 116, temp. Geo. 1).

The domicil of the intestate was that of the father. He came to Hew York as an emigrant, seven months before the death of the child. His wife and children left his former domicil, and came here to join him. From the time of his arrival, July 27, 1870, he has resided in this city continously up to the time of the trial, June 15th, 1875. His answer that he came here for the purpose of living here, and making it his home, was struck out by the court at the trial.

But the case discloses that he had established a domicil in New York. In Heidenbach v. Schland (10 How. Pr. R. 477), it was held, that a person, an emigrant, having left for ever his native land, and living in this state without any determination to reside else■where, is a resident here. In Lord Thurlow’s definition, in note (Marsh v. Hutchinson, 2 Bosanquet & Puller, 230), he uses this language: “A person’s being at a place is prima faoie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence.” “It may be rebutted no doubt;” and then he states what maybe shown in rebuttal, as his being in the place for health, business, or travelling, or by military orders, or in a diplomatic capacity.

In- the present case there is nothing proved in rebuttal of the plaintiffs testimony as to his residence here.

The intestate must have had a domicil, and he •could have but one domicil, and being an infant, the law made his domicil that of the father, which was in the county where the letters of administration issued (Crawford v. Wilson, 4 Barb. 519).

Even if the jurisdiction of the surrogate can be thus collaterally impeached, as the defendant claims, it can only be upon evidence plainly disproving the recitals in the letters of administration, and it is not to be arrived at by inferences or forced interpretations. In Shelden v. Wright (5 N. Y. 497), it was held, that where certain facts were requisite to give the surrogate jurisdiction, and it appeared from the record that there was evidence tending to prove such facts, and that such evidence was adj udged to be sufficient, then that such judgment could not be collaterally impeached or contradicted.,

The injury and death of the intestate is not claimed by the plaintiff to have occurred within the limits of the county of ¡New York, though the statement of the mother that it was ip sight of Castle Garden,, and near the shore, is incongruous with her statement that it was in the quarantine. It may have occurred within the southern limits of the city, as established by the ancient grants from the crown, and which, confirmed by subsequent constitutional guarantees, are not affected by legislative enactments. If it occurred south of these limits, upon waters in the counties of Kings or ¡Richmond, then it occurred where the county of ¡New York possesses, for some1 purposes, a concurrent jurisdiction with those counties (Laws 1824, p. 359, § 2). But if the views heretofore expressed are correct, a consideration of any other questions for the disposition of the case becomes-unnecessary.

The case upon the evidence might properly have gone to the jury.

The judgment should be reversed, and a new trial ordered, with costs to abide events.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    MARGARET C. KENYON, Plaintiff and Respondent, v. AUSTIN SHERMAN, et al., Defendants and Appellants.
    i. several verdicts.
    1. Right op one op a number op dependants to a charge THAT THE JURY MAY RENDER.

      (a) In an action of tort against a number of defendants, when the evidence is such as would uphold a verdict in favor of one or more, although rendered against the others, each of the defendants in whose favor a verdict might have been rendered, is entitled to a charge to the jury that they might find in favor of one or more of the defendants, even if they did not find in favor of all.

      Í. Refusal so to charge, error which is cause for reversal.

      (T) Privilege. It is the privilege of each defendant to have his case passed on by a jury having full knowledge that they could find in his favor, and against each of the other defendants.
    (a) This although all the defendants join in the same answer, and set up the same defenses.
    Before Curtis and Sedgwick, JJ.

      Decided February 7, 1876.
    Appeal by the defendants from a judgment in the plaintiff’s favor, and also from an order denying a motion for a new trial.
    The suit is' for the conversion of plaintiff’s furniture, household goods, and wearing apparel.
    The plaintiff, previous to January 3, 1874, had occupied No. 22 W. Ninth street as the tenant of the defendant Sarah Ludlow, her sister. The defendants Austin Sherman and William D. Ludlow were respectively father and husband of the defendant Sarah Ludlow, who was the adopted daughter of the former, and acted as heragentsin the dispossessing proceedings, and the execution of the warrant. Springstein, another defendant, was an officer attached to the Third Judicial District, New York city. On January 3, 1874, the plaintiff was ejected from the premises for. the non-payment of rent. The proceedings for this were taken by the defendant Mrs. Ludlow.
    The warrant of dispossession was executed by Springstein, aided by the co-defendants William D. Ludlow and Sherman, who stated that they were acting for Mrs. Ludlow.
    These defendants not only dispossessed the plaintiff, but they refused to permit her to remove, and actually prevented her from removing, what she claimed as her property from the premises. Springstein, Sherman, and William D. Ludlow interfered with the plaintiff when she attempted to remove such property ; Mrs. Ludlow was not present.
    The answer was a general denial; also that the property actually detained belonged to the defendant Austin Sherman.
    There was a verdict for the plaintiff against all of the defendants. From the judgment entered upon such verdict, and from the order denying defendants’ motion for a new trial, the present appeals are taken.

      W. B: Putney, attorney, and of counsel for appellant, urged, as to the point decided by the court: There was different testimony as to what the several defendants did in the transaction—it was a question of fact for the jury to determine whether any property of plaintiff had been seized and converted, and if so what, and by whom, and if any one of the defendants had been found by the jury to have had no participation in the matter, then the verdict should have been in the- favor of such defendant. The refusal to charge as requested was error, and the exception taken is well taken.

      George Chalmers, attorney, and Edward D. McCarthy, of counsel for respondent, urged on the point decided by the court:
    The court refused to hold that the jury might find for one if they did not find for all. Undoubtedly if the facts had been such that Mrs. Ludlow could have made any other case than the other defendants, if her answer and proof had pleaded and shown such a difference, then this request would have been right, and the refusal to charge it error. But here all the defendants make one and the same defense. The evidence does not discriminate one defendant from the others. If Sherman did not own all the property appropriated, then all the defendants became liable ; if he did, no one was liable. On this evidence the jury could not have found for oné and against the other defendants.
   By the Court.—Curtis, J.

This action was brought against the defendants, to recover damages for the conversion of the plaintiff’s property. The jury found a verdict for the plaintiff against all of the defendants. As to the defendant Mrs. Sarah Ludio w, there was conflicting evidence. It was claimed by the plaintiff that the evidence showed that she authorized and connived at the withholding by the other three defendants of the plaintiff’s furniture, and also of her wearing apparel, and that of her infant children’s. Also that these acts of the three other defendants were not only authorized by her originally, but that she thereafter ratified and adopted them, by having the chattels that were so withheld and converted conveyed to her own premises, and there in part stored, and a part retained and rented with the house.

The defendant, Mrs. Sarah Ludlow, in her own testimony, denies that she ever authorized or instructed any one to take possession or detain this property of the plaintiff’s. There was evidence at the trial corroborating Mrs. Ludlow’s claim, that her only action in the matter was, as owner of the house where the plaintiff lived, to have her dispossessed, and that she had nothing to do with the conversion of the furniture and other personal property of the plaintiff, and that its being placed on her premises was not her act, but was done to preserve it for the plaintiff, who is her sister.

The proofs at the trial indicated that a harsh and. oppressive course had been taken by the other defendants, not only in prematurely executing the warrant of dispossession, but in using it as a means to deprive the plaintiff of her furniture, household goods, and wearing apparel, and to get the possession.of it themselves. There were circumstances disclosed at the trial that probably tended to impair the credibility of some of the evidence introduced by the defendants. It was a case where the sympathies of the jury would readily be stirred in behalf of the plaintiff. Still it was a case where, if the evidence was such that the defendant Mrs. Ludlow might have been acquitted by a verdict in her favor, she was entitled not to be • prejudiced by any direction from the court in that behalf.

.There seems to be enough shown by the testimony to warrant the jury in so acquitting her, if they gave it credence. After the close of the charge, the counsel for the defendants asked the court to charge the jury that they might find in favor of one or more of the defendants, even if they did not find in favor of all. The court declined so to charge, and the defendants’ counsel excepted.

This might properly have been charged, as matter . of law. The Code, § 274, provides that judgment may be for or against any of the parties. In actions of tort a several judgment can be rendered against some of the defendants, and the others be acquitted (Wagner v. Bill, 19 Barb. 325; Montfort r. Hughes, 3 E. D. Smith, 594).

The defendant Mrs. Ludlow, and possibly other ■defendants, may have been prejudiced by this instruction being withheld from the jury. The latter may have thought that they could not consider the case of any one defendant separately from that of the others, and that it was not in their power to find a verdict for any one defendant. That they had this right, should have been made clear to them, as from the court declining so to charge them, they would possibly consider that they were without such right. It was the privilege of each of the defendants to have his case passed upon by a jury, having full knowledge that they could find in his favor, and against each of the other defendants.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Sedgwick, J., concurred.


text:
    JACOB COHEN, Plaintiff, v. DRY DOCK, EAST BROADWAY, AND BATTERY RAILROAD COMPANY, Defendant.

      Gollision Oase.

    I. NEGLIGENCE OR WILLFULNESS.
    1. The plaintiff, driving a light vehicle, was obstructed in crossing the track of a horse-car railroad by a blockade of trucks, so that he was obliged to stop with the rear part of his hind-wheels on the track, and while in this position, a car approached, the driver of which, after waiting a moment or two, told the plaintiff to “ get off the track, ” and the plaintiff asked him to wait until the trucks moved ; promising then to move, whereupon the car-driver said, “Damn you 1 if you don’t get off here; lamíate; I will get you off some way or other;” to which the plaintiff replied, “You, wait a moment; I guess the trucks are moving, and I may go.” The trucks started, and as the plaintiff prepared to move on, the driver of the car started his horses, and the platform of the car hit or touched the hind wheel of the plaintiff’s vehicle, and overturned it, and caused the personal injuries to the plaintiff complained of.
    Held,
    1. A willful act was not necessarily established by the evidence.

      (a) The car-driver may have attempted to pass either without hitting the vehicle or by shoving it around out of his way and the hitting, or the force of the blow may have been an error of judgment, in measuring the distance.

    (1.) The language used by the driver does not necesa/rily indicate willfulness and malice.

      (a) Dismissal of the complaint held ebbob.
    (2.) Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122, distinguished.
    Before Curtis and Sedgwiok, JJ.

      Decided February 7, 1876.

      Exceptions heard at general term.
    The action is to recover damages for personal injuries alleged to have been sustained by reason of the negligence of defendant’s servant. The facts as to the injury are stated in the opinion. At the trial the court dismissed the complaint, to which the plaintiff’s counsel excepted. The court directed the exception to be heard in the first instance at the general term, and suspended judgment in the meantime.
    The facts are stated in the opinion.

      Julius Lipman, attorney, and of counsel for plaintiff, urged:
    I. The car driver’s act came within the scope of his employment. What is the scope of the driver’s employment? Why, to drive the car—only that and nothing more, and if he drives it unskillfully, and even maliciously, the plaintiff submits it is “ within the scope of his employment.”
    II. In this case the driver did not intentionally or willfully commit the injury. The testimony shows that he stopped his car within a safe distance of the buggy, and shouted to the plaintiff to get off the track. The plaintiff said he would so soon as the wagons moved. After waiting a little, the driver got impatient, shouted he was “late,” and swore a little. Then the trucks began to move, and the driver let go the brake and drove on. The presumption and fair inference is that the driver thought the wheels of the buggy would be sufficiently off the track when the car reached it to pass clear, but made a miscalculation. In this view the act was neither willful nor unlawful, but was within the fair scope of his authority. He had the full command and charge of the car and horses. He had the command and management of them for a lawful purpose. Was responsible to the defendants for his acts, and again he labored under the responsibility to the defendants if he did not reach the termination of his route within the prescribed time. He was not engaged in any unlawful act or employment, and the occurrence took place in the course of that employment, and arose out of it. The plaintiff was not a passenger in the defendant’s car. He was using the public highway.
    III. Railway companies must run their trains with reference to persons who may be rightfully upon the streets used by their roads (Kansas Pacific R. R. Co. v. Pointer, 9 Raus C. 20 ; 1872). “Exemplary damages may be awarded against a railway company for an injury occurring through the gross negligence or drunkenness of its servants” (Peale v. Railroad Co., Dillon [ U. S. Cir. Ct.] 568 ; 1871). Railroad companies are responsible in exemplary damages for the negligent and wrongful acts of their agents or employees (New Orleans, Jackson, and Great Northern R. R. Co. v. Bailey, 40 Miss. 895 ; 1866). A driver is acting in the line of his duty in helping a child or infirm person on or off the car, and the company is liable for the negligence of a driver in this respect (Drew v. Sixth Av. R. R. Co., 1 Abb. Ct. of Appeals, Dec. 556; 26 N. Y. 49). Where the driver is notified by a passenger to stop the car, and does so partially, and then starts on again, without notice, he is chargeable with negligence (Nichols v. Sixth Av. R. R. Co., 38 N. Y. 131). To entitle a passenger to recover against the carrier for being pushed off the platform of a street car, it must appear that an employee of the railway company did the wrongful act (Pesley v. Third Av. R. R. Co., 1 Jones & Spencer, 406 ; 1871). The driver of a street car having the right to put a person off the car, the company will be liable for his acts in doing so, even if his act should be malicious and willful (Meyer v. Second Av. R. R. Co., 8 Bosworth, N. Y. 305; 1861).

      IY. All the authorities cited in the case of Isaacs v. Third Avenue Railroad Company (47 N. Y. 122), do not conflict with the general proposition above stated ; they only establish the general proposition, that “for willful trespass by its servant, defendant is not liable.” The plaintiff does not dispute it; but, in this case, he ■maintains there was no willful trespass.
    V. There was a question of fact to be determined, •and he had no power to assume the fact in one way or the other ; it was the province of the jury (Thrings v. Central Park R. R. Co., 7 Robt. 616 ; Murray v. New York Central R. R. Co., 4 Keyes, 274 ; Deys v. Same, 34 N. Y. 9 ; Ernst v. Hudson River R. R. Co., 35 N. Y. 9 ; Schwerin v. McKie, 5 Rob. 304 ; Wolfkiel v. Sixth Avenue R. R. Co., 38 N. Y. 49; Renwick v. New York Central R. R. Co., 36 N. Y. 132; Copkendal v. Eaton, 37 How. 438 ; 55 Barb. 158; Brouhard v. Rensselaer & Saratoga R. R. Co., 32 Barb.; 1865 ; 1860 ; Central R. R. Co. v. Moore, 4 Zabriskie, N. J. 284 ; 1854).

      Robinson & Scribner, attorneys, and/. M. Scribner, of counsel, for defendant, urged:
    I. The only question involved in this case is : Can a master be held liable for the willful, intentional, and malicious act of his ■servant, without proof that the act was authorized or subsequently ratified and adopted by the master % The ¡authorities are so numerous and positive, against the liability of the master in such cases that it seems almost unnecessary for defendant to do more than to submit to the court the testimony of the plaintiff and his witnesses, and ask for judgment. The case is too plain for ¡any argument. All the cases agree that a master is not liable for the willful mischief of his servant, though he be at the time in other respects engaged in the service of the former (1 Chit. Pl. 69 ; McManus v. Cricket, 1 East, 106 ; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. Richmond Turnpike Co., 2 Comst. 479 ; Clark v. Metropolitan Bank, 3 Duer, 241 ; Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y. 467; Mali v. Lord, 39 Id. 383; Frazer v. Freeman, 43 Id. 566 ; Wells v. N. Y. Central R. R. Co., 24 Id., cited from page 184; Isaacs v. Third Avenue R. R. Co., 47 Id. 122; Huges v. N. Y. & N. H. R. R. Co., 4 Jones & Spencer, 36 Superior Ct. Rep. 222 ; Courtney v. Baker, 37 Ib. 249 ; Ryan v. Hudson River R. R. Co., 33 Ib. 137 ; Congreve v. Ogden, 49 N. Y. 257 ; Poulton v. London & S. W. Railway Co., 2 Law Rep. [Q. B.] 534 ; Roe v. Birkenhead, &c., R. R. Co., 21 Law Rep. [Exch.] 9 ; Lamb v. Polk, 9 Car. & P. 629 ; Weed v. Panama R. R. Co., 17 N. Y. 362; Sanford v. Eighth Avenue R. R. Co., 23 Id. 313 ; Drew v. Sixth Avenue R. R. Co., 26 Id. 49; Higgins v. Watervliet Turnpike Co., 46 Id. 23: Whittaker v. Eighth Avenue R. R. Co., 51 Id. 295; Hagan v. Eighth Avenue R. R. Co., 15 Id. 380). Part 1, chap. 20, title 13, § 6, R. S., which provides that the owner of every carriage running or traveling upon any turnpike or public highway for the conveyance of passengers shall be liable, in all cases, for all injuries and damages done by any person, in the employment of such owner as a driver, while driving such carriage, to any person, or the property of any person, whether the act occasioning such injury or damage be willful or negligent, or otherwise, in the same manner, as such driver would be liable, does not apply to railroads (Whittaker v. Eighth Avenue R. R. Co., 51 N. Y. 295). It does not apply to the act of a conductor (Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122).
   By the Court.—Curtis, J.

The exception the case presents is that of the plaintiff to the dismissal of the complaint, by the court, on the ground that, the evidence showed that the injury complained of was occasioned by the willful and unlawful act of the car-driver, defendant’s servant, and not within the scope of his employment. The case shows that the plaintiff, while driving his buggy through Catharine street, crossed defendant’s track so far that only the rear part of the hind wheels of his buggy remained upon the space occupied by the cars when in motion. At this point his further progress was arrested by a throng of trucks and other vehicles. The defendants’ car soon approached, and the driver, after waiting a moment or two, told the plaintiff to “ get off the track.” The plaintiff asked him to wait until the trucks moved, promising then to move. The driver said “Damn you! if you don’t get off here ; I am late 5 I will get you off some way or other.” The plaintiff said: “You wait a moment. I guess the trucks are moving, and I may go.” The trucks started, and as the plaintiff prepared to move on, the driver started his horses, and the platform of the car hit, or as one of the witnesses says touched, the hind wheel of the buggy, and overturned it, thus causing the injury complained of.

From the evidence, it is apparent that the car-driver may have attempted to pass by the buggy either without hitting it, or else by shoving it around out of his way so he could get by, and that he committed an error of judgment in measuring the distance. This is consistent with his saying to the plaintiff, “ I will get you off some way or other.” He was-late and hurried, and perhaps in his zeal to discharge his duty to his employer, he made the mistake which, caused the injury.

Much stress at the argument was laid by the defendant upon the language of the driver, as indicating willfulness and malice, but that does not seem to-be the necessary construction to place upon it. It indicates haste, and a desire to drive on, and has to be considered in the light of the surrounding circumstances, and a Chesterfieldian request could hardly be expected. It is quite probable if he had used his eyes as strenuously as he did his tongue, he would have been more careful, and the injury to the plaintiff would not have occurred.

• It is claimed that upon the doctrine in the case of Isaacs v. The Third Ave. R. R. Co. (47 N. Y. 122), the complaint was properly dismissed, this being an analogous case. That was a case where, when a female passenger desired to alight from the car, and declined doing so until it stopped, the conductor threw her out upon the pavement, and it was considered that this was his unauthorized, wanton, and willful trespass, and that the defendant was not liable. But this case is not to be interpreted as holding that a defendant is to be exonerated from liability for injuries occasioned by the errors and negligence of his reckless, careless, or unskillful driver, because the driver manifests at the same time that he is ruffianly and brutal. It is nowhere intimated that the employment of car drivers or conductdrs of this latter class would benefit their principals, when questions of- pecuniary responsibility for injuries arise. On the contrary, that case affirms the rule, that for a servant’s act in his master’s business, or within the scope of Ms employment, the master is liable for any abuse of authority conferred, or injuries resulting from errors of judgment, or mistake of facts, or from a negligent or reckless performance,of duties by the servant.

The question to be passed upon here, is whether it should not have been left to the jury to determine as a question of fact if the act of the conductor was willful and malicious, or negligent and reckless, and deemed by him necessary to accomplish the purpose with which he thought himself charged.

. There may be cases so near the line between law and fact that it is difficult to say to which side they belong; but the tendency of courts is to scrupulously watch that the right of a plaintiff, to have a question submitted to a jury should not be infringed upon. The principle in cases like the present is adhered to, that where the fact depends upon inferences to be drawn from the circumstances proved, about which honest men might differ, or the evidence is capable of different interpretations, then it is the plaintiff’s right to have the question submitted to the jury (Hackford v. N. Y. Central R. R. Co., 3 N. Y. 654; Belton v. Baxter, 58 Id. 411; Salter v. Utica and Black River R. R. Co., 58 Id. 631 ; Jackson v. Second Avenue R. R. Co., 47 Id. 274).

If the undisputed propfs in the present case showed that the act of the driver was unauthorized, willful, and malicious, and out of the scope of his employment, it was the duty of the court to dismiss the complaint, and if the question had gone to the jury on such evidence, and they had found a verdict for the plaintiff, it would also have been the duty of the court to set aside such a verdict as unsustained by the evidence. But the case presents this difficulty, that the undisputed facts are consistent with the plaintiff’s claim that Ms injuries resulted from the negligence of the defendant’s servant. They are capable of such interpretation. That inference is fairly to be drawn from them, and though men may honestly differ in their views in respect to them, still it is the province of the jury to pass upon the question, and the right of the plaintiff to have it submitted to them.

We think that the plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs to abide the event of the ¿ction.

Sedgwick, J., concurred.


text:
    THOMAS HAMILTON, Plaintiff and Respondent, v. THIRD AVENUE RAILROAD COMPANY, Defendant and Appellant.
    I. VERDICT.
    1. Passion and prejudice op jurors.

      (a) What not sufficient to establish that the jury was so actuated.

    1. The rendering a verdict on conflicting evidence, contrary to a strong intimation from the court, and assessing against a corporation damages at three hundred and fifty dollars, for injuries to the plaintiff’s feelings, and a slight pinching of his hands, in ejecting him from a car for alleged non-payment of fare, is not sufficient.
    II. DAMAGES.
    1. Excessive.

      (a) Three hundred and fifty dollars in above case is not.
    IH. TRIAL.
    1. Charge that a certain question op pact is not involved, WHEN NOT ERROR.

      (a) It is not erroneous when there is no sufficient evidence in support of the fact.
    1. The courtis confined, in its instructions, to the scope and province of the proofs.
    Before Curtis and Sedgwick, JJ.

      Decided February 7, 1876.
    Appeal from an order denying defendants’ motion for a new trial, and from a judgment in plaintiff’s favor.
    The action was brought to recover damages claimed to have been sustained by the plaintiff, upon being put off one of the defendant’s cars, for non-payment of fare. The answer of the defendant denies that there was any such occurrence.

      Clarkson H. Potter, for appellant.

      The Count Joannes, for respondent, among other things, urged :
    The defendant demands a fourth trial of this action. Authorities and precedent are against any more than three trials, wherein a plaintiff has gained consecutive verdicts and judgments, without any disagreement by the respective juries (Shaw v. Worcester Railway Co., 7 Gray (Mass.) Rep.). Verdicts fifteen thousand dollars; eighteen thous- and dollars; and twenty-two thousand five hundred dollars. The Honorable Rufus Choate, for plaintiff to resist another trial, said that he had searched the English and American authorities, and he could nowhere find permission granted for a fourth trial, following three consecutive verdicts for a plaintiff against the same defendant, and for the same cause of action. €hief Justice Shaw refused a fourth trial of the same action.
   By the Court.—Curtis, J.

The defendant urges that the verdict was flagrantly against the evidence, and should be set aside. The plaintiff testifies that he was expelled from defendant’s car No. 2, having first been conveyed to defendant’s depot in car No. 75, to the conductor of which he paid his fare through, and that he was then changed to car No. 2, the conductor of which told him to “ come on,” he was all right,” when he asked him if he required a ticket to go on that car. There was strong conflicting evidence on the defendant’s part, with a strong intimation from the court that the plaintiff was mistaken. The question of fact was properly left to the jury. The evidence was conflicting, and however the court may have been impressed in regard to it, the province of the jury to pass upon it could not be invaded. At each of the three trials of this action the jury have found for the plaintiff upon this issue of fact; and this of itself, unless some strong reason to the contrary is shown, is a circumstance entitled to consideration when a motion, is made to set aside the verdict as contrary to evidence.

But the defendant insists that the verdict of the jury was the result of passion and prejudice, and that this is evidenced by the disregard of the weight of evidence, and by the amount of. the verdict, and that no such verdict would have been given against a natural person.

The jury had the witnesses before them, they had the best opportunity of determining who were and who were not reliable, and because they believed the plaintiff’s testimony, and disbelieved that which was in conflict, it is not easy to see that the verdict was against the weight of evidence. Nor is it made apparent that in a similar case, and upon like proofs, such a verdict would not have been given against a natural person. There is nothing in the case that shows that the jury, in their manner or conduct or deliberations, were swayed by passion or prejudice.

At the first trial of this action, after the decision in it establishing the rule of damages, reported in 53 N. Y. 25, the jury rendered a verdict for one thousand five-hundred dollars damages. On a motion for a new trial, this was set aside as excessive, and on the present trial, after the jury had been carefully cautioned by the court against committing a similar act, the plaintiff had a verdict of three hundred and fifty dollars. If the plaintiff’s testimony was true, and the jury so found it, it is not clear that the sum awarded was an excessive recompense for the injury he testified was dohe to his feelings. The present verdict can not, in this view of it, be set aside as excessive, nor is it in-collision with the intimation of the court when the-preceding verdict was set aside.

The only remaining point raised on the argument was that the judge erred in charging that this was a question of payment of fare, and not of production of a ticket, and that if the plaintiff had paid his fare, the company was liable for the mortification and injury to his feelings which resulted in his removal.

It may well be that if the regulations of the defendant required that the plaintiff should purchase a ticket before or after he entered the car, it was his duty to do so, and that he should also produce it when called upon by the conductor, and that if he failed to do so when asked, the conductor had the right to remove him from the train.

But it does not appear in the present case that the removal of the plaintiff from the car was in consequence of the non-purchase or non-production of a transfer ticket. No such reason for his removal was alleged in the answer or was shown on the trial.' It was not proved that the defendant’s regulations required the plaintiff to provide himself with such a ticket, or with any ticket. Defendant’s superintendent testified that in 1868, “payment of seven cents fare on a Harlem car would have entitled a passenger to one continuous passage on the same car to any point on the downward track of the road until after 4.33 P.M., when the ‘through cars’ began to run off, after which hour the passengers would be passed, at the depot, to ‘ another car.’

“No passenger is passed until the run-off trips begin in the afternoon ; the conductor then passes the number. I had twenty-five passengers. The conductor of the other car then takes the passengers, without a check, and without a fare ; that is only at night, on the ‘ run-off’ trips.” This is vague, and the last sentence possibly refers to the practice of the defendant, at the period he testified, instead of the time of the occurrence complained of. It is not proved that any duty devolved upon the plaintiff to provide himself with a transfer ticket, or that a rule of defendant’s existed to that effect. The evidence is that he not only was unsupplied with one, but that the conductor told him, in substance, that it was unnecessary to have one when he entered the car. The conductor testifies he does not recollect about it, but neither he nor the driver testify that there was any practice or rule at that time requiring passengers to provide themselves with such tickets.

There was no sufficient foundation laid for the judge to instruct the jury that they should consider whether the plaintiff had a transfer ticket, and refused to produce it, that in case he had one, and so refused, that the conductor had a right to remove him. The court is confined, in its instructions to thejury, to the scope and province of the proofs, and can not go beyond to charge as to contingencies and obligations not embraced or affected by them. This exception to the charge can not be sustained, and the charge seems to accord with what was held to be the proper measure and limit of damages in the decision in this case heretofore referred to.

The judgment and order appealed from should be affirmed, with costs.

Sedgwick, J., concurred.


text:
    FRANCIS B. HEGEMAN, Plaintiff and Respondent, v. MARY A. CANTRELL, et al., Defendant and Appellant.
    I. VERDICT.
    1. Power of the court to send back a jury, after haying ANNOUNCED THEIR VERDICT, FOR RE-CONSIDERATION.

      (a) Before the verdict is recorded, the court may, if it appear to be a mistaken one, send the jury back for a further consideration.
    H. ISSUES FRAMED IN AN EQUITY CAUSE FOR TRIAL BY JURY.
    1. Decisions made during the trial, and the verdict itself, AS TO BEING SUPPORTED BY SUFFICIENT EVIDENCE, HOW TO BE REVIEWED.

      (a) Only, either on the hearing of the cause at special term for the trial of equity causes, or on a case with exceptions, to be made and settled as provided in other cases, or on a motion upon the minutes.
    3. Verdict, conclusiveness of.

      (a) The court, at the ultimate hearing and disposal, exercises its discretion, and is not precluded from rejecting the verdict, and ordering a new trial, or from finding the question of fact itself.
    IH. APPLICATION OF THE PRINCIPLES.
    Three questions were framed for trial by jury. The judge charged the jury that if they found the first two in the affirmative, they should render a certain specified finding on the third, but if they found the first two in the negative, then they should render a certain other specified finding on the third. The jury retired, and brought in a verdict finding the first two questions in the negative, but finding the third in the manner in which by the charge they were authorized to find only in case of finding the first two in the negative. The court refused to receive the verdict, repeated its charge, and sent the jury back for further consideration. The jury returned with a verdict finding the first two questions in the negative, as before, and as to the third, in the manner in which by the charge they were directed to find it in the event of finding the first two in the negative. The verdict was against the defendant. The cause was then brought on and heard at a special term as an equity-cause. No evidence was offered by the defendant. Judgment was rendered for the plaintiff. Afterwards defendant moved to set aside the verdict on affidavits and the judgment roll.
    Held :
    1. That on such a motion, which brought neither the evidence nor the charge before the court the question as to whether there was error in the charge, could not be entertained.
    2. That from so much of the charge as was before the court there seemed to be an inconsistency in the&st verdict which authorized the trial judge to refuse to receive it, and send the jury back.
    Before Curtis and Sedgwick, JJ.

      Decided February 7, 1876.
    Appeal by the defendant Mary A. Cantrell, from an order made October 21, 1875, denying her motion to set aside the verdict of the .'jury.
    The action was brought to foreclose a mortgage to secure the sum of twelve thousand five hundred dollars, by the defendant to the plaintiff. The defendant set up the defense of usury, claiming that she, in fact, received but eleven thousand five hundred dollars, and that the difference was deducted by the plaintiff, as an additional percentage for making the loan.
    On October 5, 1874, the following special issues were framed to be tried by a jury.
    First—Was there any agreement between the plaintiff, Francis B. Hegeman, and the defendant, Mary A. Cantrell, other than the one set forth in the bond and mortgage referred to in the complaint herein ?
    Second—Was there any unlawful or corrupt agree ment between the plaintiff, Francis B. Hegeman, and the defendant, Mary A. Cantrell, by which it was agreed that the said defendant, Oantrell, should pay to the plaintiff, for the loan of the sum of twelve thousand five hundred dollars, secured by the bond and mortgage of said Cantrell, referred to in the complaint, the sum of thirteen hundred and fifty dollars, over and above the seven per cent, specified in said bond and mortgage ?
    Third—What amount of money did the plaintiff advance on the bond and mortgage set forth, in the ■complaint ?
    It was further ordered that such issues be tried on notice from either party to the other of two days at ■any trial term of this court, and said issues, when determined, be certified to this court for final judgment thereon herein.
    The issues were tried and submitted to a jury, March 18th, 1875.
    After the charge of the court, the jury retired, and brought in their answers to the issues, as follows : To the first and second issues they answered “No,” and to the third issue, “Eleven thousand one hundred and fifty dollars.”
    The court declined to receive the verdict, or to have it recorded, and directed the jury to retire to their room for further deliberation. The affidavits as to what occurred are conflicting. It appears by the ■stenographer’s minutes, as stated in the defendant’s moving papers, that the court read again to the jury this portion of the charge: “I have charged you. there is no direct evidence that the plaintiff knew anything of the transaction of Canis, or even heard of it; yet if you believe the testimony of Mrs. Cantrell, and upon that, in connection with the other evidence in the case, can satisfy yourselves, upon your oaths, that there was collusion between the plaintiff and Mr. Norland, as her agent, on the one side, and Canis on the other, and this deduction of one thousand three hundred and fifty dollars was a mere device, contrivance, &c., to defeat the provisions of the statute, and to secure to the plaintiff a greater rate of interest for the loan of the money than the legal rate, or if this device originally resorted to by Mr. Dorland, without authority, was subsequently ratified by the plaintiff with full knowledge of the facts, then in either case you will answer yes to the first two questions, and in response to the third, yon will fix the amount of money advanced by the plaintiff on the bond and mortgage set forth in the complaint, at the sum of eleven thousand one hundred and fifty dollars. These are the only conditions upon which you are to find ‘Eleven thousand one hundred and fifty dollars.’
    “If you believe the other theory that the plaintiff was not directly or indirectly guilty of usury in any of the various ways, in which I have instructed you she may have become liable, you must find a verdict for twelve thousand five hundred dollars.”
    The defendant’s counsel excepted. The jury again retired, and returned with their verdict, answering “ Ho ” to the first and second issues, as before, but to the third issue they answered “Twelve thousand five hundred dollars.”
    The defendant then moved for a new trial on an affidavit, which was denied, April 7th, 1875.
    The cause was then proceeded with at the April special term, and heard as an equity cause. Ho evidence was offered by the defendant. Judgment was rendered for the plaintiff on or about April 8th, 1875.
    In September, 1875, the defendant moved on affidavits and the judgment roll to set aside the verdict found by the jury, before whom the special issues were tried.
    This motion was denied, and from the order denying it, this appeal is taken.

      Henry C. Morange, for the appellant.

      A. H. Wagner, for the respondent.
   By the Court.—Curtis, J.

The finding of the jury upon the third issue submitted to them was probably inconsistent with their findings as to the first and second issues also submitted to them. In the absence of the charge of the judge, and of all the evidence, as there is no case made by which either of these are brought before the court, on this application, it is not easy to perceive what transpired at the trial. This inconsistency was apparently an error, or oversight, to which the court, upon receiving from the foreman the findings of the jury, immediately called their attention, and directed them- to retire for further consideration. This was the proper course to be pursued by the court.

A verdict is of no force until given openly in court, and received and recorded, and until received and recorded the jury have a right to retire, and to further consider their verdict and to alter it. The practice has long prevailed that the court may of its own accord send the jury back to reconsider their verdict, when it appears to be a mistaken one, before it is received and recorded (Root v. Sherwood, 6 Johns. 68). If the verdict is in writing, it makes no difference, and the jury have the same right, before it is received and recorded, to retire and to re-consider it, and to vary from their first finding (Blackley v. Sheldon, 7 Johns. 34).

As far as can be gathered from what is before us as to what transpired at the trial, and the delivery of the verdict, there was eminent propriety in the court sending back the jury to further consider the questions submitted. If there was an oversight or an incongruity in their finding, they had an opportunity of correcting it; and if there was not, they had an opportunity for farther deliberation and intelligent consideration, and of answering the questions, as they might find they should be answered from the evidence.

If there was any error on the part of the judge in giving instructions or directions to the jury, it is very difficult for us to pass upon it without having either the testimony or the charge before us. The affidavits of jurymen, taken ex parte, and long after the trial, are liable to be affected by failure of recollection or by sympathy for the losing party. At any rate, the Eules, hereafter referred to, and settled practice of the court, have long established another course of procedure that may be pursued to set aside a verdict, and to obtain a new trir 1 of special issues.

The issues in an equity cause are framed and sent to a jury simply to inform the conscience of the court. At the ultimate hearing and disposition of the cause, the court exercises its discretion as to how far it is to be controlled by the findings of the jury, and is not precluded even then from rejecting the verdict, or ordering a new trial, or from finding the question of fact itself (Patterson v. Ackerson, 1 Edwards Chy. R. 103; Brown n. Clifford, 7 Lansing, 53 ; Vermilye v. Palmer, 52 N. Y. 475).

In order to justify and speedily review the trial of the issues sent to a jury for determination, the Bules of the court require either party feeling aggrieved by the determination of such special issues, and desirous of a new trial on the ground of any error of the judge, or on the ground that the verdict is against evidence (except where the judge directs such motion to be made upon his minutes), to make such motion on a case and exceptions, or a case containing exceptions, to be served and settled, as provided in other cases (Rule 33, 1858 ; Rule 40, 1874).

If this application brought before us the proofs at the trial, and the judge’s charge, instead of the conflicting ■allegations of ex parte affidavits, it would greatly facilitate the inquiry as to the grounds of the alleged errors of the court. But giving the application such consideration as what is presented by the papers warrants, there fails to be disclosed ground for reversing the order appealed from, and for setting aside the verdict.

The order appealed from should be affirmed, with •costs.

Sedgwick, J., concurred.


text:
    JOHN P. GOULD, Plaintiff and Respondent, v. JOHN T. MOORE, Defendant and Appellant.
    Ü. TRIAL, CONDUCT OF.
    1. General objection, what can not be urged under, on APPEAL.
    1. Question stating facts assumed, to have teen proved.

      (a) A decision overruling a general objection to such a question can not be impugned on appeal on the ground that there was no proof of the facts on which the question was based.
    S. Summing up.
    1. Reference by counsel to matters not proved, or of which THE PROOF WAS EXCLUDED.
    1. It is highl/y improper.

    3. It is the duty of the court not to permit it.

    3. Error. It is error to permit it after objection made.

      But

    if, on objection, such reference is immediately rebuked by the court, and not persevered in, it is not cause for reversal, unless it was made in bad faith, and might have prejudiced the defeated party.

      II. NEWLY DISCOVERED EVIDENCE, MOTION FOR NEW TRIAL ON THE GROUND OF.
    1. Affidavit of witness who is to give it is beqtjisite.

      (a) Death of witness, what necessary in case of.

    1. Documentary or other proofs corroborating or establishing what it is alleged could have been shown by him.

      (b) Diligence.
    When the evidence claimed to have been newly-discovered is that there was a person who could have testified that he had paid for the services rendered, and the discovery, was claimed to have been first made by such person stating io the counsel of the defeated party, a few days after the trial, that he had made such payment, but it appearing that such person, at the time of the rendition of the services was, and down to, and after the trial (which covered a long period of time), had been on terms of intimacy with the defeated party, and had some connection with the transactions, out of which the claim for services arose.
    Held

      that reasonable diUyence had not been shown.

    1. That the successful party had frequently told the counsel for the unsuccessful one that such person had never paid him, does not excuse non-enquiry of such person as to the fact.
    Before Curtis and Sedgwiok, JJ.

      Decided February 7, 1876.
    Appeal by the defendant from a judgment, and from an order denying a motion for a new trial upon the ground of newly-discovered evidence. The action is brought to recover the value of services alleged to have been performed for defendant in obtaining a compromise of his indebtedness. The defendant denies the employment, extent, and value of the services, and their performance. A verdict was rendered against the defendant for sixteen thousand two hundred dollars.
    It appeared upon the trial that the defendant was one of the late firm of O. W. & J. T. Moore & Co., merchants, of the city of ¡New York, who failed, and made an assignment, on December 4, 1861, at which time their indebtedness amounted to about one million dollars. The partners, excepting the defendant, took proceedings for a discharge under the bankrupt act. Defendant did not.
    In 1868, the plaintiff called upon the defendant, and proffered his services to secure the release of the defendant from his liabilities, which he said could be done for about seventy thousand dollars.
    Soon after, the plaintiff proceeded with his negotiations for a compromise, the claims against defendant at that time being about six hundred and seventy thousand dollars or six hundred and eighty thousand dollars, and the defendant having furnished him with a statement of the same. The defendant claims that this employment was by and on account of Mr. Edwin Hoyt.
    As fast as plaintiff effected compromises, he had the claims assigned to Mr. Hoyt, or in blank, and delivered the assignments to Mr. Hoyt, who, if in blank, inserted his own name as assignee. Mr. Hoyt furnished the money to make the compromises. The plaintiff finally compromised about three hundred and fifty thousand dollars of defendant’s indebtedness.
    In all cases Mr. Hoyt furnished the money, and became substituted as defendant’s creditor.
    It was admitted at the trial that the plaintiff made a great many exertions to effect compromises of defendant’s debts that were unsuccessful. There was-evidence as to the value of the alleged services.
    Miller, Peel & Opdyke, attorneys, and Livingston K. Miller, of counsel for appellant, urged:
    I. Th& motion for a new trial on the ground of newly discovered evidence should have been granted. First.—Facts shown on motion for a new trial: 1. That defendant’s attorneys had been informed by plaintiff, in conversations with him, that Mr. Hoyt had never paid him. This is not denied by plaintiff. 2. That Hoyt had paid the plaintiff in full for the services in this suit, and would so testify. 3. That, at the trial, he (Hoyt) was too sick to be out, and could not attend. 4. Although Mr. Hoyt is dead, the evidence is in his books, and will show that it was he that employed plaintiff to do these services, and paid him for it. Rules of law as to new trial on account of newly-discovered evidence: 1. That evidence has come to party’s knowledge since the trial. 2. That it was not owing to want of diligence that the evidence was not discovered before trial, (a) Hoyt was too sick to be seen or examined. (6) Plaintiff- deceived defendant’s counsel as to the fact, and therefore induced him to disbelieve the fact, which now is found to be true. 3. The new evidence must be material so as to produce a different verdict. 4. It must not be cumulative. This last rule is very strictly applied, “but it has exceptions occasionally.” If it appears that if received, the most obvious justice, and, if rejected, the most obvious injustice, will be done, courts do not hesitate to adopt the former alternative (Graham & Waterman on Dew Trials, 3, p. 1064; Barker v. French, 18 Vt. 460.) 5. The affidavit of the witness must be produced or excused. In this case he was- too sick, and the affidavit of two persons with whom he conversed is given. We submit that on the motion for new trial all the fore going requisites have been complied with.
    II. The motion for new trial upon the judge’s minutes should have been granted, because the verdict is contrary to, and not sustained by the evidence.
    III. There was no evidence on which the jury could fix the valuation of services. The only witness was W. C. Hoyes, and his answer was to a question setting out a set of facts, none of which were proved in the case. Plaintiff, who swears to value, is not shown to be an expert in such matters. The exception to the decision overruling the objection to the questions put to Noyes, is well taken. The case was entirely supposititious.
    IV. The judgment should be reversed, because the plaintiff’s counsel, on the trial of this action, in summing up to the jury, violated well-established principles of law, by referring to matters not in evidence and making them a part of his summing up. There can be no doubt that these matters seriously affected and prejudiced defendant. That it was an unpardonable license, and in violation of the privileges of counsel, will be obvious upon reference to the following authorities: Waterman on New Trials, 685; Legg v. Drake, 1 McCook, 286 ; 1 Ohio S. R. ; Dickerson n. Burke, 25 Geo. 225 ; Tucker v. Heniker, 41 N. H. 317; Vide Muldoon v. State, 11 Geo. 615, 629; Berry v. State, 10 Geo. 522 ; Martin v. Orndorff, 22 Iowa, 504 ; Hoxie v. Home, 33 Conn. 471 ; Cooke v. Ritter, 4 E. D. Smith, 253 ; Crandall v. People, 2 Lansing, 313; Waterman on New Trials, 655, 4 N. H. Rep. 213 ; Koelges n. Guardian Mu. L. I. Co., N. Y. Com. of Appeals, MSS.

      Nelson Smith, attorney, and of counsel for respondent, urged :
    I. The proof on the part of the plaintiff showed the employment, what the services were, and what they were worth. ,
    II. The exception taken by the defendant (and the only one taken by him) to the decision of the court overruling his objection to the question put to the witness Noyes, was not well taken. 1. The assumptions embraced in the question were fully justified by the testimony, which had been given, and therefore the question was proper. 2. The objection to the question is general. It does not specify any' ground. Had grounds of objection been mentioned, they might have been obviated. It is well settled in such cases, that the party objecting must specify his grounds, or his exception can avail him nothing (Fountain v. Pettee, 38 N. Y. 184-186 ; Malony v. Perkins, 9 Bosw. 576; Doane v. Eddy, 16 Wend. 526; Merritt v. Seaman, 6 Barb. 230).
    III. The remarks attributed to the plaintiff’s counsel in summing up, even conceding them to have been improper, were immediately disapproved and corrected by the court; there is no pretense, therefore, for saying that they could have influenced the jury to the prejudice of the defendant, or that they could have been in any manner adopted either by the court or by the jury. It is only when improper matters are brought into the summing up, and where the court, upon having the point raised, permits them, that objection can be taken upon appeal. Besides, there is no exception, and could not be, as the ruling of the court in relation to them was in favor of the defendant, and any impropriety, if such there was, was corrected at the time, before the case went to the jury.
    Points upon the motion for a new trial upon the ground of newly-discovered evidence.—I. The motion fora new trial, on the ground of newly-discovered evidence, was properly denied (People v. N. Y. Superior Court, 10 Wend. 285; Hollingsworth v. Naper, 3 Cai. 182 ; People v. Mack, 2 Park Cr. R. 673 ; Shumway v. Fowler, 4 Johns. 425 ; Whelrough v. Beers, 2 Hall. 391). (a) In People v. N. Y. Superior Court, Savage, Ch. J., lays down the following principles as well settled, on motion, for a new trial on the ground of newly-discovered evidence. (1) Testimony must have been discovered since the former trial. (2) It must appear that the testimony could not have been obtained with reasonable diligence on the former trial. (3) It must be material to the issue. (4.) It must go to the merits of the case, and not impeach the character of a former witness. (5) It must not be cumulative (10 Wend. 293). We may add three other grounds which in the nature of things partake of the vital elements o: the motion. (1) It must appear that there is newly-discovered evidence, and that must be shown by the affidavit of the witness alleged to be newly-discovered (Shumway v. Fowler, 4 Johns. 425 ; Adams v. Bush, 2 Abb. Pr. N. S. 110; S. C., 1 Abb. Ct. App., Dec. 7). (2) It must appear that the witness can be obtained to testify upon the new trial in case it is ordered. The fact of Mr. Hoyt, the witness here, being dead, is a complete answer to the motion (Shumway v. Fowler, supra). (3) The proposed testimony must be such that the witness, if produced at the new trial, would be compelled to testify upon the subject. If the matter is privileged, or would degrade the witness, so that he would be excused from testifying, it is not ground for granting the motion. So held in Shumway v. Fowler, supra. The motion made here was obnoxious to all of the above objections.
   By the Court.—Curtis, J.

There is no force in the defendant’s objection that the verdict is contrary to the evidence, and not sustained. The plaintiff testified to his employment by the defendant, and that he rendered the services on his behalf, and at his request. Other evidence in the case corroborates the plaintiff’s statement. There was conflicting evidence on the defendant’s part, and these questions of fact were fairly submitted to the jury, who found for the plaintiff. Ho sufficient reason is shown to set aside the verdict as contrary to evidence.

The jury having found for the plaintiff upon the issues of fact, the defendant urges that there was no evidence upon which they could’ determine the value of the plaintiff’s services. The plaintiff was bound to prove the value of his services. The plaintiff testified without objection that he considered the services which he had performed for the defendant, and which he enumerated, were worth from fifteen thousand dollars to twenty thousand dollars. He had previously testified as follows: “I have had other cases besides this to settle, where I have come into contact with others engaged in the same business. My familiarity with others in the same business in the city of New York has continued more or less for three years. I have had other cases to settle for creditors against other parties-—merchants in New York. I have been engaged in the general collection business, and in having suits-brought, &c., in connection with collections.” Another witness testified to having ten or eleven years’ experience in this class of business, and to having a knowledge of the value of such services. In answer to a question enumerating the services which the plaintiff testified he had rendered, and asking him what, in his judgment, the plaintiff would be entitled to for such services, the witness estimated them to be worth twenty thousand dollars. Before answering the question, it was objected to generally by the defendant, no ground of objection being specified, and an exception was taken to the ruling of the court admitting the question.

Upon the argument, it was claimed that this question was based upon a set of facts not in the case, and that the exception was well taken. The exception is untenable for two reasons. The defendant should have stated the ground of his objection to the court, so that his opponent could have had the opportunity very possibly of obviating the objection. It is no part of' the policy of the law that objections for which no reason is assigned, lest they should be obviated, should be sustained (Walsh v. Wash. Ins. Co., 32 N. Y. 440 ; Fountain v. Pettee, 38 N. Y. 186 ; Mallory v. Perkins, 9 Bosw. 577).

Again, upon the ground claimed at the argument, that the question calling out ttm answer was based upon a set of facts not proved at the trial, the exception fails ; for there appears to be nothing stated in the question except what was testified to at the trial. If there was any error, it should have been pointed out, so that it could have been corrected in the question. The plaintiff, by a general objection to a question of this kind, is not obliged to consume time, and protect himself, by reading over all the testimony as to the plaintiff’s services, and then ask the witness his opinion as to what they are worth.

Another ground upon which the defendant seeks-to have the judgment reversed is, because the plaintiff’s counsel, in summing up to the jury, referred to matters which, when offered in evidence, had been excluded by the court.

It is no part of the office of an advocate to seek to influence the verdict of a jury, by presenting to their consideration, in his summing up, matters which have been excluded as evidence by the court. Especially when objected to, it is the duty of the court not to permit it. To allow matters excluded as evidence, to be referred to, or presented, in summing up, so as to affect the deliberations of the jury, or to influence their passions or prejudices, or otherwise to lead them from the line of duty pointed out by their oaths, is at variance with the primary principles of justice. Acts of this kind lead to unjust verdicts, and where they have the sanction* of the judge, call for a reversal of the judgment (Koelges v. Guardian Life Insurance Co., 57 N. Y. 638 ; Crandall v. People, 2 Lans. 312'.

But it must be observed that the present case differs in these respects from those referred to. There is-no exception, and none could be made, as the ruling was in defendant’s favor. Again, in the reference (on two occasions) by defendant’s counsel, in his summing up, to matters which had been excluded when offered in evidence, the case shows that such reference was promptly objected tó, and immediately rebuked by the court, and not persevered in by the defendant’s counsel. Under such circumstances, unless it was apparent that such reference was made in bad faith, and may have prejudiced the objecting party with the jury, a reversal is not called for.

The defendant fails to show that he was, or could have been, prejudiced with the jury, by the reference to these matters by the counsel, nor is it easy to see how he could be ; while there is nothing in the case that establishes that the reference to these matters by the counsel was anything more than a misapprehension as to the evidence. It would, under such circumstances, be unwise and unjust to reverse the judgment for this reason.

The defendant seeks for a new trial on the ground of newly-discovered evidence. It appears that in March, 1874, a few days after the verdict, Mr. Edwin Hoyt stated to the defendant, and to one of his counsel, that he had paid the plaintiff in full for the services. Mr. Hoyt died in May following. Ho affidavit of his is presented, nor are any copies of entries in his books, or of receipts from the plaintiff, or memoranda even, of any kind, presented to confirm Mr. Hoyt’s statement though he referred to his books in his conversation about it. If this had been done, the plaintiff might have had an opportunity of explaining or meeting it.

As it is, the plaintiff denies that he has been paid any compensation by Mr. Hoyt for these services, and does not dispute the affidavit of the defendant’s counsel, that he told him so, and who claims to have been misled by such statement of the plaintiff.

It appears that the relation's between the defendant and Mr. Hoyt were very intimate, and had so continued for many years; that the defendant had proposed to the plaintiff to refer this controversy to Mr. Hoyt, as referee or arbitrator; and that after the trial, Mr. Hoyt was as usual about his business until within a week of his death.

This motion for a new trial was noticed upon affidavits for the first Monday of March, 1874, and some weeks' before Mr. Hoyt’s decease.

Considering the long period that intervened between the rendering of the services and the trial of the action, and the familiar intercourse between the defendant and Mr. Hoyt, it appears extraordinary that the defendant should not have discovered this payment to the plaintiff, if it had really taken place. A very moderate degree of diligence on the defendant’s part would have led to the discovery of it before the trial, or at least have secured Mr. Hoyt’s affidavit and documentary proofs, if any there are, of such payment, for the purposes of the motion for a new trial.

To grant a new trial on the ground of newly-discovered evidence, where there is no affidavit from the witness as to what he will testify to, and in case of his death, where there are no documentary or other proofs offered to corroborate or establish what it is alleged could have been shown by him, would be a departure from well settled rules. Besides this, a party is bound to be reasonably diligent in ascertaining and presenting his evidence at the trial. It would be a dangerous doctrine to allow a party to take his chances at a trial without reasonable nreparation, and then grant him a new trial, because he had through his own neglect omitted to discover and present evidence that lay in easy reach (Oakley v. Sears, 7 Robt. 111: Quinn v. Lloyd, 1 Sweeny, 253 ; Adams v. Bush, 2 Abb. Pr. N. S. 104 ; Shumway v. Fowler, 4 Johns. 425 ; Deom v. Morrill, 1 Hall, 382).

The judgment and order appealed from should be affirmed with costs.

Sedgwick, J., concurred.


text:
    FAYETTE S. PIERCE, et al., Plaintiffs and Appellants, v. PAUL S. BROWN and MORTIMER S. BROWN, Defendants and Respondents.
    i.—costs.
    1. Sepabate bills fob sbvebal successful defendants.
    (a) § 806 of the Code, as amended in 1851, regulates the whole subject, and confines the right to separate bills to the cases therein expressly mentioned, to the exclusion of all others.
    1. In an action for damages against two defendants who originally appeared and answered by the same attorney, but by separate answers, and subsequently another attorney was substituted for one of the defendants, and thereafter the complaint was dismissed as to both,
    Held,
    that the decision of the taxing officers that separate bills could be allowed, was correct.
    Before Curtis and Sedgwick, JJ.

      Decided February 7, 1876.
    Appeal from an order affirming the decision of the clerk taxing a bill of costs of the defendant Mortimer S. Brown. The facts appear in the opinion.

      Wm. R. Baldwin, attorney, and M. Compton, of counsel for appellant, urged:
    To entitle a defendant to costs under section 306, on a dismissal of the complaint, it is manifest there must be separate defenses, separate answers, and separate attorneys, and the court must award such costs as a part of the relief (Castellano v. Beauville, 2 Sandf. 670; Tracy v. Stone, 5 How. Pr. 104 ; Brockway v. Jewett, 16 Barb. 590 ; Atkins v. Lefevre, 5 Abb. N. S. 221 ; Crofts v. Rockfeller, 6 How. Pr. 9 ; Fairbank v. Paige, 6 Hill, 267; Perry v. Livingston, 6 How. Pr. 404; Bank v. Sturdy, 15 Abb. Pr. 75; . Allen v. Wheeler, 56 N. Y. 50 ; 3 Wit's Pr. 469 ; Willen & Sheldon v. Wiltsie, 13 How. Pr. 506).

      La Roy S. Gove, attorney, and of counsel for respondents, urged:
    The defendants are sued in an action of tort; they put in separate answers ; they had separate attorneys in the action and on the tidal, as they had a right to have. Each is entitled to costs (Castellano v. Beauville, 2 Sandf. 670 ; Colcomb v. Caldwell, 5 How. 336 ; Bridgeport Ins. Co. v. Wilson, 12 Abb. Pr. 209 ; S. C., 20 How. 511). This was always allowed in an action for a tort (Tenbroeck v. Paige, 6 Hill, 267; Stone v. Duffy, 3 Sandf. 761; Marks v. Bard, 1 Abb. Pr. 63; Zink v. Atterburg, 18 How. 108; Decker v. Gardner, 8 N. Y. 29 ; Daniels v. Lyon, 9 Id. 549).

       Note by Reporters.—See Haye a. Robertson, 38 N. Y. Supr. Ct. 59.

   By the Court.—Curtis, J.

The action was brought against the two defendants, to recover damages for defrauding the plaintiffs by conspiracy and collusion. The complaint was dismissed at the trial, and the defendants recovered judgment against the plaintiffs. The clerk allowed costs to each defendant, the judge at special term affirmed the allowance by the clerk, and the plaintiffs appeal from the order of affirmance. Both defendants originally appeared and answered by the same attorney, but by separate answers. Subsequently another attorney was substituted for the defendant Mortimer S. Brown, who claims a separate bill of costs.

The Code, § 306, provides “ That in all actions where there are several defendants not united in interest, and making separate defenses by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or any of them.”

This provision of the Code applies precisely to the case of these defendants. They were not united in interest, and they made separate defenses by separate answers. There is no claim, and it does not appear, that the defendants in defending separately, acted in bad faith, and for the purpose of increasing the recovery of costs, or that in allowing costs there was any unreasonable exercise of the discretion of the court.

In the case of Allis v. Wheeler (56 N. Y. 50), overruling some of the earlier cases, it was held that this provision of § 306, as amended in 1851, regulated the whole subject of the recovery of costs in all classes of actions by one or more of several defendants obtaining judgment, and that it confined the right of such recovery to the cases therein expressly mentioned, to the exclusion of all others.

This ruling disposes of the question raised by the appellants on this appeal, and the order appealed from should be affirmed with costs.

Sedgwick, J., concurred.