author: Bosworth, Ch. J. Woodruff, J.

text:
    McMahon, Plaintiff and Appellant, v. The Mutual Benefit Life Insurance Co., Respondents.
    1. Where an action is brought by a non-resident against a foreign corporation to recover the sum insured by a life policy; and by the laws of the state in which it is brought, a plaintiff not a resident of such state, may sue a foreign corporation in the Court in which it is commenced, “ when the cause of action shall have arisen, or the subject of the action shall be situated in such state;” and where the laws of such state further declare that in such an action as is brought, “ costs shall be allowed of course to the defendant, . . unless the plaintiff is entitled to costs;” and where such action is brought to trial on issues of fact joined therein by pleadings which contain no allegation showing that the Court has not jurisdiction; and the plaintiff examines witnesses to prove his cause of action and rests; and by their testimony it appears, that the plaintiff is a non-resident, and that the cause of action did not arise in the state in which the action is brought; and thereupon, on defendants’ motion, the complaint is dismissed; the defendants are entitled to recover their costs of such action from the plaintiff, and to a judgment against him therefor.
    2. When costs are allowed, in such a case, it is under the provisions of the statute that the prevailing party shall recover his costs, and that they shall be allowed to the defendant of course, unless the plaintiff is entitled to them. If they are refused, it is not because the Court has a discretion to grant or refuse them, but because it has no power to act in the premises, by reason of having no jurisdiction of the action and of the parties.
    3. Where the Court has jurisdiction of the parties, and for aught that is alleged in the pleadings has jurisdiction of the action also, and an actual trial is had, and the complaint is dismissed by order of the Court, because the uncontradicted evidence, given at the trial, discloses that the Court has no power to determine the merits of the controversy by reason of the non-residence of the plaintiff; the judgment to be entered on and conforming to such order, is a final determination of the rights of the parties in that action, and specifies such final determination, within the meaning of the word judgment, as used in §§ 245 and 280, of the Code. Per Woodruff, J.
    4. In such a ease, it is regular for the clerk to insert in the entry of judgment the amount of the defendants’ costs when they have been duly adjusted. No order of the Court, or of a Judge, directing the costs to be so inserted, is required by the Code.
    (Before Bosworth, Oh. J., Hoffman, Slosson, Woodruff, Pierrepont and Moncrief, J. J.)
    Heard, April 16;
    decided, May 7, 1859.
    This is an appeal by the plaintiff from an order made by Mr. Justice Moncrief, March 5, 1859, denying a motion to strike from the record of judgment, the clause therein which awards to -the defendants their costs of the action.
    The action is upon a policy of insurance upon lives; and the plaintiff sues as assignee of the policy, to recover the sum insured by it. The complaint does not disclose where the plaintiff resides; nor where the person resided to whom the policy was issued, at the time of issuing it. The cause being at issue, on issues of fact, it was regularly brought to trial, before Chief Justice Bosworth and a jury, on the 9th of February, 1859.
    At the trial, the plaintiff examined witnesses to establish his cause of action, and rested. From the testimony given by some of said witnesses, it appeared that the plaintiff, at the time the action was commenced, was not a resident of the State of Flew York, and that the policy on which it was brought was executed and delivered out of said state to a non-resident thereof, and was upon the lives of persons who then resided out of said state. The defendants are a foreign corporation. The defendants moved to dismiss the complaint “on the ground of want of jurisdiction,” and the motion was granted. The defendants procured their costs of the action to be taxed; and entered a judgment dismissing the complaint, and that the defendants recover their costs as thus taxed. The plaintiff moved at Special Term, for an order that such judgment be vacated for irregularity, or that the judgment be amended, “by striking out of it so much as provides for the recovery of costs by the defendants.”
    That motion was denied, and from the order denying it, the plaintiff appealed to the General Term.

      0. A. Nichols, for plaintiff (the appellant).

      Alvin G. Bradley, for respondents (the defendants).
   By the Court.

Bosworth, Ch. J.

—The complaint does not state where the plaintiff resides, and, of course, does not show that he is not a resident of the state. It does not appear therefore, on the face of the complaint, “that the Court has no jurisdiction of the subject of the action.” The defendants could not demur to the complaint, on the ground that the Court had no jurisdiction of the action. (Code, § 144, sub. 1, and § 427.)

If the defendants had alleged in their answer that he did not reside in the state, that allegation would have been put at issue, ■by 'section 168 of the Code.

The place of residence of a party, in many cases, is difficult to be determined. (1 Bosw., 673.)

Had such an issue been made by the pleadings, and the proofs been such that it must have been determined upon conflicting evidence, it might have been necessary to take evidence as to all the issues, and to instruct the jury that if they found the plaintiff was not a resident at the time of suit brought; they must render their verdict for the defendants, for that cause alone. And if they found he was a resident, then to dispose of the cause, upon its merits, under the instructions given to them relating to the other matters in issue.

If the instructions of the Court, upon the law applicable to the issue of residence, should be deemed erroneous and be excepted to, or if a verdict, on that issue, in favor of the defendants, was thought to be against evidence, the plaintiff would have a right to be heard, at Special Term, on these . questions, and if the decision there was adverse, then on appeal, at the General Term, and again in the Court of Appeals upon the questions of law raised by the exceptions.

The defendants cannot avoid being made parties to an action, in which this question may arise, and if it does, cannot avoid litigating it, until it is determined by a final determination of the action.

The plaintiff has brought them before the Court, and subjected them to the necessity of being parties to such a litigation, by making them defendants in an action, which he has commenced as plaintiff.

It is just that the defendants should have' the costs of such an action, if it is determined in their favor. When they are compelled to litigate the jurisdictional competency of the Court to take cognizance of the action and succeed on that question, they should have the costs of the proceedings in which it arises, and by which it is determined.

The Code is peremptory, that in all actions to recover money, “costs shall be allowed to the defendant,” “unless the plaintiff be entitled to costs therein.” (Code, § 305.)

The plaintiff has failed to recover anything and is not entitled to costs. The Code has made no exception, to the unconditional provision,. that, in such case, costs shall be allowed to the defendant.

The plaintiff contends, that when an action is dismissed for want of jurisdiction to hear it and decide it on its merits, the defendant cannot have the costs of such action.

This question is fully considered in Hunt v. Inhabitants of Hanover, (8 Metc., 343,) under a statute respecting costs, substantially the same as the Code of this state.

The Court decided that in such a case, the defendant is entitled to judgment for costs. In their opinion, they say; that a Court, in which an action is made returnable, “has for some purposes a jurisdiction of the case. It must necessarily entertain jurisdiction, so far as to hear and determine the question of jurisdiction generally. The parties may appear for this purpose, they are entitled to be heard and may demand an adjudication.” “ The action is, therefore, upon its entry, pending in Court.” “ There are, therefore, two adverse parties present, and when the result is that the motion of the defendant to dismiss the action prevails, the defendant is the prevailing party, and, as such, is entitled to judgment for his costs.” (Id., 347.)

“ If costs are allowed at all, in such cases, it is under the general provision that costs shall be allowed to the prevailing party in actions at law. If they are refused, it is not because the Court has any discretion to allow costs, but because the Court has not the power to allow costs, by reason of their having no jurisdiction of the cases and of the parties.” (Id., 346.)

“If the want of jurisdiction deprives the Court of the power to award costs to the defendant in one case, it does in all cases obnoxious to the like objection. It is the fact of the want of jurisdiction that deprives the Court of the authority to award costs, and not the difficulty or the facility with which the Court arrives at the conclusion that the case is not within their jurisdiction." (Id., 346.)

The Court, then discuss the question “ whether the want of that jurisdiction of the action which is necessary to hear and determine it upon its merits, also operates to oust the Court of authority to award the prevailing party his costs ?”

It reached the conclusion already stated. The rule established, as the correct interpretation of the statute there under consideration, is, in our opinion, conformable to the fair meaning and import of the provisions of the Code relating to costs, as well as entirely reasonable and proper in itself.”

The opinion of the Court in that case presents views, which, in our judgment, are not only satisfactory, but are conclusive; that the defendants, in this case are entitled to costs, as a matter of course.

The order appealed from should be affirmed.

Woodruff, J.

—I not only concur fully in the views expressed by Chief Justice Bosworth, but I deem it pertinent to add farther; that the ground upon which it is urged that costs cannot be allowed to the defendants is not that it is not eminently just . that they should be indemnified for the expenses to which they have been subjected, .but that the Court having no jurisdiction have no power to render any judgment, and therefore no power to award costs; and the cases cited so far as they sustain any such proposition rest the decision upon that sole ground. Without pausing to consider whether before our Code of Procedure, it was unqualifiedly true that, when an action was terminated in the defendant’s favor for want of jurisdiction of the action he could not recover costs, notwithstanding the Court had jurisdiction of the subject and of actions of that nature, the sole ground upon which the argument is urged now fails entirely.

Under our Code of Procedure there may be a judgment, indeed in some cases there must by law be a judgment, even though the defendant prevails for want of jurisdiction. And the example stated by the Chief Justice furnishes the illustration. .

Suppose in this case the. defendants had averred in their answer that the plaintiff did not reside in this state, and the action had been brought to trial upon the issue joined upon that averment.

Proofs being taken it would have been the duty of the Court to instruct the jury that if they should find the averment in the answer proved, they should render a verdict for the defendants. And if the averment was proved such would have been the verdict.

In such case the statute in express terms directs that “unless a different direction be given by the Court the clerk must enter judgment in conformity with the verdict,” (§ 264); and thereupon § 311 becomes distinctly applicable. “ The clerk shall insert in the entry of judgment on the application of the prevailing party, . . . the sum of the allowances for costs,” &c., as provided by the chapter concerning costs.

In this instance then, it is plain that the defendants would recover their costs, and have judgment therefor. No specific order or direction of the Judge is necessary. The statute awards to them their costs.

Again, as suggested in the opinion of the Chief Justice, it cannot in principle make any difference whether the cause is terminated in favor of the defendants upon a formal issue made by the pleadings, tried and disposed of by the jury, or is terminated on the trial, upon the objection raised and determined in a mode warranted by our system of practice, though want of jurisdiction is not specially pleaded.

In that case a judgment is, I apprehend, equally warranted by the Code. The judgment in the action is defined to be “ the final determination of the rights of the parties in the action.” (§ 245.)

It often happens that the merits of the controversy are not finally decided, as when a complaint is demurred to for some defect apparent on its face, which does not involve the merits; and yet the final determination of the rights of the parties in the action, is a judgment as above defined. The decision on a demurrer to a complaint, when want of jurisdiction appears on its face, determines the rights of the parties in that action. Thereupon the sections 279 and 280 become expressly applicable, and their terms show that the entry of such determination is the judgment in the cause; thus, “The Clerk shall keep a book for the entry of judgments.” .“The judgment shall be entered in the judgment book, and shall specify clearly the relief granted or other determinatixm of the action/” and section 311, then, as before, requires the clerk to insert in the entry, on application of the prevailing party, the sum of the allowances for costs, &c.

In whatever mode therefore the action is finally determined, that determination may, by these plain provisions, be made the judgment of the Court, and all provisions of the Code in relation to costs, entitle the prevailing party to have them inserted therein.

If I deemed the question otherwise doubtful, I should still be constrained to say that the duty of the clerk is plainly pointed out by the provisions of the Code above referred to, and that he has in the present case done what it is uniformly proper and regular for him to do. He has made his entries in the same manner, and in all respects in conformity with the same practice, - which is proper and regular in all cases, where a nonsuit or order dismissing the complaint is directed on the trial. He cannot be required, nor is he at liberty to deliberate upon the question and decide whether the party is entitled to costs, on an inquiry into the reasons or grounds which induced the Court to order such nonsuit. And therefore in my judgment, his entries are regular; and if they could be impeached for want of power in the Court, the question can properly be reviewed by an appeal from the judgment, which has been regularly entered.

For these additional reasons therefore, as well as for what seem to me the conclusive reasons assigned by the Chief Justice, the order appealed from should be affirmed.

The order was affirmed, all the judges concurring.


source: Caselaw Access Project

author: Woodruff, J.

license: Public Domain

text:
    Catharine N. Forrest v. Edwin Forrest.
    1. Where a decree of divorce has been pronounced in favor of a wife, and a reference has been ordered to determine the amount of permanent alimony to be allowed to her and the manner in which it shall be secured, if the referee unreasonably delays proceeding in the reference, or grants to the defendant an adjournment of the hearing for an unreasonable time, the Court will vacate so much of the order of reference as designates the referee, and will appoint another with directions to proceed in the reference.
    2. The intention of the defendant’s counsel to visit Europe, either on business or for pleasure, is no sufficient ground for adjourning the reference for three months and upwards, to enable him to return and resume the conduct of the reference.
    3. If the business of the referee himself be such that he cannot proceed with reasonable dispatch in the hearing and decision of the matter referred to him, the Court would relieve him and appoint another.

      4. Accordingly in this case, when the hearing before the referee was begun in June, 1859, and near the close of June the referee, on motion of the defendant and against the will and objection of the plaintiff, adjourned the .reference to about the middle of October, partly on the ground that the defendant’s counsel was about to leave for Europe to be absent for three months, and partly on the ground that a vacation and relief from the duty of trying the cause was proper: Held, that the delay to the plaintiff was unreasonable, and that, unless the defendant consented to vacate the order of adjournment, and proceed with the reference, the order appointing the said referee should be vacated and another referee be appointed with directions to proceed without delay.
    5. Pending such’a reference it is proper to allow to the plaintiff a reasonable sum for the expenses of the reference and also temporary alimony to be paid by the defendant until the amount of permanent alimony shall be fixed and ordered, although no order for temporary alimony was made before the decree of divorce was pronounced; and it is no reason for withholding such temporary alimony, that at one time since such decree the earnings of the plaintiff by her personal exertions were more than sufficient for her support.
    (Before Woodruff, J.)
    At Special Term,
    argued July 14th;
    decided, July 19th, 1859.
    This was a motion by the plaintiff for an order requiring the referee (appointed herein to inquire into and determine what would be a suitable amount to be allowed to the plaintiff for permanent alimony, and how the same should be secured,) to proceed in such reference, or that another referee be appointed, in his place,, to proceed therein. And that an order be also made requiring the defendant to pay her a suitable sum for the expenses of the reference, and a temporary allowance for her support.
    The history of the case may be gathered from the report thereof in 6 Duer, 102, and from the report on the succeeding pages of this volume (p. 661).

      The verdict herein in favor of the plaintiff was rendered on the 26th day of January, 1852; and a decree of divorce was pronounced on the thirty-first of that month. The defendant appealed, and, at the Term of July, 1856, the decree of divorce was affirmed, and the order of reference was made to fix the amount of permanent alimony. Pending the suit and down to November, 1851, the defendant voluntarily paid to the plaintiff $1,500 a year for her support; after which, he ceased making any provision for her, and she resorted to the stage to obtain a livelihood. It appeared by affidavits that during a visit to California, in 1853, and thence onward, for two or three years, she received from theatrical performances many thousand dollars, and greatly more than was necessary for her support. This was not denied by the plaintiff; but she alleged that those receipts had been expended, and she was now destitute. The affidavits also stated that the defendant is worth upwards of five hundred thousand dollars. No order for temporary alimony had before been applied for in the action.
    Neither party brought on the reference until the 9th of June, 1859, when, upon the plaintiff’s notice, the hearing commenced. The reason assigned by the plaintiff for delay on her part, was mainly the want of money, and reluctance to urge her counsel to devote themselves to her case amid other pressing engagements, and a reason urged for proceeding in it now, was the intermission of the regular sessions of the Courts, and the readiness of her counsel to devote the necessary time to the present prosecution of the reference.
    A motion was made by the defendant, on the ninth of June, for a commission to examine witnesses in California, which was denied {post, p. 661). The defendant appealed, and, on the twenty-fifth of June, applied to the General Term to postpone the hearing of the appeal to- October, chiefly on the ground 'that his counsel was about to leave for Europe, to be absent during that interval. This motion was denied by the General Term. But the referee, on the defendant’s motion, and notwithstanding the plaintiff’s objection, adjourned the reference, until about the middle of October, on the ground that such counsel was about to go to Europe, and it appeared that he was influenced also by the consideration that the months of July, August and September were regarded as vacation months, in which some of the Courts in this city held no Term for the trial of causes.
    Thereupon the plaintiff made the present motion.

      Chas. O'Conor, for the plaintiff, in support of the motion.

      James T. Brady, for the defendant, in opposition thereto.
   Woodruff, J.

—The only questions remaining to be settled in this case are the amount which should be allowed to the plaintiff for alimony, and the manner in which that should be secured to her. To determine those questions we have ordered a reference. The plaintiff is left by the defendant, her late husband, entirely destitute. Although entitled to share justly and equitably the income of one, who, according to the papers before me, has a fortune of half a million of dollars, she is left to her own personal exertions to obtain the necessaries of life.

And this, when it is entirely certain that her late husband owes her, and must be decreed to provide her, a comfortable support.

This is true even though we should assume him innocent, and presume that such innocence may appear on a reversal of the judgment of this Court, for if instead of being divorced, he were her husband still, he is bound to support her.

So that whatever be the result of this struggle on his part, a comfortable support is due and must be decreed to her, or1 be furnished to her by him, in any event.

For the purposes of the reference ordered, he is to be deemed, as he has been adjudged, guilty; and she is to be deemed entitled to alimony.

It is true that she has not heretofore urged her claim with the eagerness which might have been expected, but her delay is explained, and certainly that delay has not operated to the defendant’s disadvantage. If he had deemed the delay undesirable, he could have moved the reference himself.

Now, she has found means to press her claim, and counsel willing to devote their time to its prosecution; and she presents herself apparently, and according to her statement, in need of that support to which she is clearly entitled.

Her first endeavor has been so far défeated that, against her objection and that of her counsel, the hearing is adjourned for three months to enable the defendant’s counsel to go to Europe.

She, in a state of destitution, dependent hitherto upon the good will of her counsel and compelled to await their convenience, is thus postponed,—until it is in a high degree probable that their engagements will again deprive her of their services,— in order that the defendant, who is abundantly able to employ any desired number of counsel, may not be subjected to inconvenience while his counsel is absent for months from the city.

This seems to me manifestly unjust.

The suggestion that the months of July, August and September are vacation months, in which it is the right of the defendant to have the case suspended, is to me a novel one. Although the arrangement of the Terms of Court are so made that, so far as possible, the comfort of jurors, witnesses and suitors may be promoted by relieving them from attendance upon crowded Court-rooms in the heat of summer; yet, the period is not uniform in the various Courts, and nothing is more common than for references to be sought and granted for the very purpose of avoiding the delay which the interruption of the monthly sessions of the Courts for trial would otherwise cause.

For other purposes, the Courts are open, and one or more of the Judges are in daily attendance.

But in expressing the opinion that the delay which would be caused to the plaintiff is unjust, I state not my own opinion only, but the declared judgment of the General Term. A motion to postpone to October the argument of an appeal, involving the most important question to the defendant, which is connected with this reference, was denied, though urged upon the very grounds on which the postponement of the reference is now sought to be justified. The Court thought the plaintiff ought not so to be hindered in the obtainment of an obvious right, and to be left destitute of the means of support, while the defendant’s counsel was pursuing either pleasure or business in Europe.

I am clearly of that opinion in regard to the reference itself. And the views which I entertain in regard to the proper subjects of inquiry on the reference (and which, on a former motion, I have expressed), lead me also to the conclusion that the reference ought not to be protracted beyond a very few sittings, and that any counsellor of ordinary capacity, skill and learning is abundantly competent to protect the defendant’s interest on this reference, whether he has been familiar with the prior stages of this litigation or not.

I entertain the most sincere respect for the fairness, good faith, and impartiality of the referee, and have unquestioning confidence that he has done what he deemed in entire accordance with the right of the defendant, in adjourning the reference. But he erred I think in not considering sufficiently the plaintiff’s right to have her support provided, when her right to a support had been already settled by a decree, and the amount alone remained to be fixed.

The Court would not of course compel a referee to act, against his inclination and at a sacrifice of personal convenience which he felt unwilling to make, when there are, no doubt, many who are not only willing but desirous of rendering such services.

Whether the Court can regularly make an order vacating the order of adjournment already made by the referee may be open to question. That the Court can vacate the order of reference and direct a reference to some person whose engagements are such that the reference will be proceeded in with reasonable dispatch is not doubtful.

If the present referee can so arrange his business as to continue the reference, and the defendant consents to vacate the order of adjournment, that the reference may proceed without further delay that course should be taken; but if not, then the order of reference should be vacated and a reference be directed to some suitable person who will attend and hear the parties and their proofs at once.

In relation to the application for alimony pending this reference, there seems to me to be no reason why it should be withheld; on the contrary the considerations above suggested are strong' reasons why it should be granted. Not only so; it is the uniform practice of the Court to grant it without special reasons.

The circumstance that six or seven years ago in San Erancisco the plaintiff received considerable sums as the proceeds of theatrical exhibitions under her management, becomes of slight importance in this connection, when it appears that the plaintiff is now destitute and unable to pay the expenses of the reference.

I perceive no just reason why the defendant should have at any time withheld the allowance, which he voluntarily made to her down to Kovember, 1851.

As already suggested his obligation to pay is not, as the case now stands, in any degree doubtful. And it will be strange if when the permanent alimony shall be fixed there be not a very large sum in arrear which it will be the duty of the defendant to pay. With him therefore the question whether he shall now pay something towards the plaintiff’s support pending the reference and something towards the expenses, is only a question of time, and to my mind it is reasonable that the plaintiff’s wants should receive some consideration; and to require the defendant to pay something now, out of the income of an estate of which the principal is said to amount to five hundred thousand dollars, is only requiring him to pay now what it seems to me certain he must pay hereafter, unless the death of the plaintiff, before any sum is fixed, should operate to release him.

The circumstance that the plaintiff has not made -the application sooner, is to his advantage. Had the petition been presented three years ago it must have been granted. He should not complain that it has been delayed.

On this branch of the application the order will be that the defendant pay for the support of the plaintiff at the rate of two hundred dollars per month, beginning with the presentation of this petition. And that he advance to her fifteen hundred dollars towards counsel fees and expenses of the reference.

It will be necessary that the order to be entered be settled on notice; and the details, conforming to the directions above indicated, as well respecting the continuance of the reference as the making of the payments will then be settled.

The consent of the referee to proceed forthwith in the reference, and the consent of the defendant to vacate the order of adjournment having been filed, an order was entered that the reference proceed and that the defendant make the payments to the plaintiff in conformity with the foregoing opinion.

This motion was made and decided, after the appeal in Forrest v. Forrest, reported (post, 661) had been argued, and while it was held under advisement.


text:
    James Stuart v. John Binsse, Executor of John La Farge.
    1. Where, in. order to move for a new trial, or for the purposes of a review by appeal, a party has made and served a case, the adverse party has no right to make a new case, and serve the same as a proposed amendment by way of substitution.
    2. It is the duty of the adverse party who proposes alterations in the case served, to do so by either writing his proposed amendments on the case itself, or on a separate paper with a designation of the page and line of the original case proposed to be altered, and a specification of each alteration proposed. And where such amendments are written on a separate paper, it is usual to require the party offering the case and amendments for settlement to mark distinctly on the original case each place and passage to which amendments are proposed.
    3. These rules are rules of convenience intended to facilitate the settlement of the case, and dimmish the labor which, when it is voluminous and the amendments are numerous, is very great; and intended to secure such an arrangement of the papers as will most easily present to the eye of the Judge the precise difference between the parties.
    4. A case as proposed may be so imperfect by reason of omissions and so inaccurate in what it contains, that the necessary amendments require the making of a substitute, or the proposal of amendments to each line and passage thereof, with such multiplicity of detail, that the labor of settling them would be far greater than the examination and approval of a substitute. In such case the Court have power to permit the proposal of such substituted case.
    The general rule however requires the proposal of specific amendments and must be followed unless the Court direct otherwise.
    (Before Woodruff, J.)
    At Special Term;
    July 21st, 1859.

      This was a motion, by the defendant, to set aside a proposed amendment to the defendant’s case, prepared by him for the purposes of an appeal from a judgment entered on the report of a referee.
    The amendment served proposed to amend by striking out the entire case, and substituting a case as drawn up by the plaintiff’s counsel.

      John A. Bryan, for the defendant, in support of the motion.

      JEdward P. Cowles, for the plaintiff, in opposition.
   Woodruff, J.

—The general rule is that amendments should be either written on the case served, or on a separate paper containing a distinct reference to the page and line of the original case proposed to be amended. It is also usual to require the attorney, before submitting the case and amendments for settlement, to mark on the original case, in some distinct manner, each place and passage at which amendments are proposed to be made. In order to this, the Court Rules require that, in preparing cases, the lines of the case proposed shall be numbered so that each copy shall correspond. (Court Rules, No. 34; Milward v. Hallett, Coleman & Caines’ Cases, 261; Graham’s Pr. Tit. “Cases.”) lf

When the review sought requires that all the material testimony be inserted, and that testimony is voluminous, the labor of settling a case to which numerous amendments are proposed is very great, and the Judge or referee is entitled to all the aid which counsel can give, by arranging the papers, so as easiest to present to his eye the precise.difference between the parties.

In general the proposed substitution of a new case will greatly embarrass the settlement, unless the Judge has the assistance of two persons in comparing, at the same time, the case and the substitute, and referring to his own minutes. And where neither the proposed case nor the substitute agree with such minutes in all things, and one in many particulars best conforms thereto, while the other in other particulars is most accurate, the Judge, instead of marking the amendments “allowed” or “disallowed,” will be compelled to enter into numerous and prolix details in the act of settlement, specifying,—with as much or perhaps even more labor than if he were himself proposing amendments,—the allowances and disallowances he makes.

No doubt, it would be, in most cases, a saving of labor to counsel, proposing to amend, if permitted to copy or direct a scrivener to copy his own minutes of trial, in bulk, and propose such copy as a substitute, and so devolve upon the Judge the labor of comparison, in detail. This should not be sanctioned. The duty of the amending party is to .specify, in detail, each amendment he proposes, and to do it in a manner which will facilitate the examination and settlement.

This rule does not however require that every word or every line should be made the subject of a separate amendment. It is no uncommon thing for counsel to find an entire paragraph so incorrectly stated that to amend it otherwise than by striking it all out and substituting another, would be impossible. And in such case whether the amendment is done by striking all of it out in one amendment or by striking out each line separately, (thus proposing as many amendments as there are lines,) would not affect the result, and the former would be the most convenient mode. The rule however should be sparingly relaxed, and where successive paragraphs are of the description last named they should be separately amended, otherwise the same inconveniences would arise as have already been mentioned.

On the other hand there may be sometimes instances of clear exception to the rule, in which cases the Court would relieve a party from compliance therewith. A case may possibly arise in which a proposed substituted case is so accurate and the proposed case is so inaccurate, or vice versa, that the settlement may be made by the Judge by a simple allowance or disallowance of the whole amendment. Then of course it would be far less trouble to the Judge and to the parties to have the substitute proposed as one amendment. This will very rarely if ever, happen. And yet there may be cases in which the case proposed is so inaccurate that any attempt to amend it will amount in substance to proposing an entire change; and then it is of no benefit to the parties or the Judge, but the contrary, to have the proposed change presented in the form of as many amendments as there are lines or even paragraphs in the case; a number which in a case so voluminous as that now before me, might require many hundred changes.

Exceptions to the rule may therefore exist. And upon showing clearly that the convenience of the parties'and of the Judge will be greatly promoted, leave would be given to propose a substituted case. But to entitle a party to this leave he should show that it is not possible to amend the case without proposing amendments in detail which would in substance amount to a new case, or would render the comparison and settlement more prolix and tedious than if such entire substitute were received.

It is not stated on this motion that there is any difficulty in specifying all the amendments in matters of substance in detail. On a cursory examination of the case and proposed substitute there are whole pages which do not appear to be materially different. To a large extent the language is identical. It is true that if every alteration of language, which the substitute proposes, should be made the subject of a specific amendment •the amendments will be very numerous, but I am confident that if counsel look only to the substance of the testimony and not to the mere form of words there will be no difficulty in proposing the amendments so that the settlement of the case will not be unusually burdensome.

As it is not apparent that the amendment was not proposed in the form of a substitute, in good faith, the order will be that it be set aside with leave to the plaintiff to propose amendments in proper detail within twenty days, and that the costs of the motion, $10, be allowed to the defendant as costs in the cause if he recover costs therein.

Ordered accordingly.