text:
    Nicholas P. Trist, plaintiff and respondent, vs. Joseph A. DeCabezas, executor, &c. defendant and appellant.
    1. Section 273 of the Code, as. amended in April, 1862, which provides that (unless the court shall otherwise order) a referee shall make and deliver his report within sixty days from the time the action shall be finally submitted, in ' default of which he shall not be entitled to any fees, and the action shall proceed as though no reference had been ordered, does not cover existing submissions.
    2. It contemplates future submissions—final submissions to the roferee after the amendment was passed and took effect upon them also, and was not intended to have a retro-active effect.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October, 1864.
    Appeal from an order denying a motion to set aside a referee’s report, and judgment entered thereon.
    • The cause was at issue, and was referred to a referee, some time during the year 1860. In March, 1862, the case was submitted to the referee for his decision. The time for the referee to make his report was not extended by the order of the court or the consent of parties. On the 5th of May, 1864, the referee not having made his report, the appellant noticed the cause for trial at a special terra of this court, to be held on the first Monday of J une thereafter. On the 13th of May the appellant was served with a copy of the referee’s report, (bearing date May 7, 1864,) and notice that judgment was entered on that day in favor of the respondent, for $539.63.

      G. Tillotson, for the appellant.

      D. B. Eaton, for the respondent.
   By the Court,

Monell, J.

The only question in this case is, whether the provisions of section 273 of the Code, as, amended April 23, 1862,. are applicable to it. The section as .amended provides as follows : “Unless the court shall otherwise order, the referee or referees shall make and deliver his report wilhin sixty 'days from the time the action shall be finally submitted, and on default thereof said referee or referees shall not be entitled to receive any fees, and the action shall proceed as though no reference had been ordered.” If those provisions are applicable to this case, then I am of opinion that the service of a notice of trial was" a sufficient disaffirmance of the reference to render the subsequent report of the referee, and judgment thereon, irregular. That the cause was finally submitted to the referee for his decision in March, 1862, I do not regard as disputed. The request of the referee to be furnished with an authority upon a question involved in the case, was a mere shifting of the labor of looking up the law, from the referee to the counsel, and cannot be considered a re-opening of the case. I assume, therefore, as the fact, that the amendment of section 273, above quoted, was passed .and took effect after this cause had been “ finally submitted ” to the referee.

There is nothing in the amendment indicating an intention to give it a retroactive effect, nor that it shall be applicable only to future cases ; and we are left to determine the question by ascertaining from the letter of the statute what was the intention of the law makers.

Prior to this amendment, no restriction as to time for making a report was placed upon a referee. He could, however, be compelled by mandamus to proceed and decide.

In all statutes which affect or change a remedy, it is but fair to presume that it was intended to exempt pending cases and proceedings from their operation, unless the contrary appears ; especially where the change might prejudice or injure the rights of parties. As a general rule, all statutes take effect from the time of their passage, or within twenty days thereafter. They can have no force or efficiency previous to that time ; and statutes which afford or affect remedies in civil actions are usually designed to supply defects or confer new rights.. It is not uncommon in statutes, to apply them in terms to, or to exempt them from, pending proceédings. Instances of this frequently occur iu the Code. (See sections 268 and 455, and 294, 328, and 364 as amended in 1863.) When the statute is silent, it must be presumed that it was the intention to limit its operations to the period of time when it took effect,-and to fasten its provisions only upon such proceedings as might be commenced thereafter. Suppose, in the case before us, that the cause had been finally submitted to the referee more than sixty days when the amendment of 1862 was passed ; then, upon the construction claimed by the appellant’s counsel, either party might immediately upon the act taking effect, not only have deprived the referee of his fees, but have abandoned the reference, and proceeded to trial as if no reference had been ordered. It cannot be that the legislature intended that any such construction should be put upon the statute. . And the omission to apply it, in terms, to pending actions confirms me in the belief that it was to have no retroactive effect.

The act establishing the city court of Brooklyn was passed March, 1849, but did not go into effect until May 1, 1849. The act conferred jurisdiction upon that court “in the action's enumerated in section 103 of the Code of Procedure.” The question arose whether the amendment of that section in 1849 (the amendment taking effect May 1, 1849,) was applicable, and whether the city court could exercise the enlarged jurisdiction embraced in the amendment; and it was held that it could not, In Griswold v. Atlantic Dock Co., (21 Barb. 225,) the court say the act undoubtedly referred to the existing Code, inasmuch as the legislature could not have anticipated that another Code would be subsequently passed which should go into operation on the same day with the act organizing the court.

In Ely v. Holton, (15 N. Y. Rep. 595,) the question was whether the amendment of the 11th section of the Code, which took effect May 6, 1857, allowing an appeal from an order granting a new trial, and also in cases arising in a justice’s court, was applicable to orders and judgments prior thereto, and the court held it was not. The amendment of the 273d section is in form, like that of § 11, namely, that it be amended “ so as to read as follows,” transcribing, and apparently reenacting the whole'section, with the amendment included. Judge Denio, in the case just referred to, says : “The theory of amendments made in the form adopted in the present inr stance, we take to be this ; the portions of the section which are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect and the. court limit the amendment to cases arising after it took effect. The case of People v. Carnal, (6 N. Y. Rep. 463,) is referred to and approved. There it was decided that the act of Mareh 22, 1852 (ch. 82, p. 76) did not authorize a writ of error in behalf of the people, where the judgment sought to be reviewed was rendered before the act was passed. The act is silent as to its application to past or future judgments.

The late chancellor says, in Wood v. Oakley, (11 Paige, 400, 403,) “ Courts will apply new statutes only to future caswhich may arise, unless there is something in the nature of the new provisions adopted by the legislature, or in the language of such new statutes, which show that they were intended to have a retrospective operation.” The principle of the cases of Dash v. Van Kleeck, (7 John. 489,) Bates v. Stearns, (23 Wend. 481,) and Berley v. Rampacher (5 Duer, 188,) is in point.

The case was submitted to the referee for his decision before the amendment >vas passed. The language of the amendment is, “within sixty days from the time the action shall be” (not shall have been) “ finally submitted.” It contemplates a future submission—a filial submission to the referee after tire amendment was passed and took effect; and it would be imputing a design on the part of the legislature to impair and injure suitors in seeking their remedies, should we extend the operation of the statute so as to cover existing submissions.

I am therefore of opinion there was no irregularity in the referee’s making his report, nor in the entering of judgment upon it.

The order should be affirmed with costs.


source: Caselaw Access Project

author: Barbour, J.

license: Public Domain

text:
    Simmons vs. Simmons.
    1. An allowance to the wife, in an action for a divorce a vinculo, pending the suit, is always.relatively smaller than a permanent provision after decree. As a general rule, temporary alimony ought to be limited to the wife's actual wants.
    2. Where the real estate of the husband is quite sufficient for the security of the support of the wife during the litigation, and for the payment of such alimony as will probably be awarded by the final decree, he will not be restrained by injunction from selling or disposing of, during the pendency of the suit, a pair of horses and two carriages with which the wife had been furnished by her husband for her own separate use, while they lived together.
    3. Although power is conferred upon the court, by statute, to require the husband to pay any sums necessary to enable the wife to carry on the suit, during ■ its pendency, there is no law which authorizes a judicial tribunal to compel a husband to furnish his wife, before final decree, with a house, furniture, horses or any other specific article, except money, in such sums as may be necessary to enable her to carry on the litigation, and for her suitable and comfortable subsistence.
    (Before Barbour, J. at special term,
    November, 1864.)
    Motion to extend and enlarge an injunction pendente lite. In this suit, by a wife against her husband, for a divorce, a vinculo,the complaint, after setting up the facts constituting the principal subject matter of the action, alleges that the defendant is the owner of certain real estate in this city, of great value, which the plaintiff has reason to believe, and fears, he will, unless restrained, dispose of before final judgment, for the purpose of avoiding the payment of such alimony as may be awarded, and prays for an injunction requiring the defendant to abstain from selling or disposing of the same during the pendency of the suit. This injunction pendente lite was granted. No answer to the complaint has been put in, although the time for answering has expired. Upon affidavits, showing that the plaintiff has in her possession a pair of horses and two. carriages, with which she was furnished by her husband for her own separate use, while they lived together, and which she has so used for a long time, the same being suitable and proper for her to have, considering the wealth of her husband, and the style in which the parties had lived together, and that the defendant is about to take them away from her, the plaintiff now moves that the injunction heretofore granted may be so extended and enlarged as to include those horses and carriages, nuts

      Charles A. Rapello and Wm. Curtis Noyes, for the plaintiff.

      James M. Smith, for the defendant.
   Barbour, J.

There is no pretense in the moving papers that the defendant’s real estate which is covered by the injunction will not be amply sufficient to secure the payment of such alimony as may be, by final decree, awarded to the plaintiff. It must be assumed, therefore, that such real estate alone is quite sufficient for the security of the plaintiff during the litigation, and that by the final judgment, or otherwise, such property will, if necessary, be charged in such manner as the court may deem fit, for the payment of such alimony as shall be awarded, as was done here in the case of Forrest v. Forrest. The order is not necessary, therefore, for either the present- or ultimate security of the plaintiff.

Hor can it be said that the taking of the horses and carriages from the possession of the plaintiff, or depriving her of their use, during the litigation, will, in any manner, “produce injury" to her, or violate her rights, within the intent and meaning in which those terms are employed in the 219 th section of the Code. It is, no doubt, an injury affecting a substantial right that is contemplated.by the section referred to, and nothing else; and, certainly, it cannot be claimed that the plaintiff here has any right, legal or equitable, to the possession or use of the carriages and horses, as against her husband, to whom they belong.

Nor can the claim be sustained that the status of the parties in society and the great wealth of the husband render it fit and proper that the defendant should be compelled by the-order asked for, to continue to furnish the plaintiff with the horses and carriages pending the litigation. Power is conferred upon the court by the 72d section of the statute “ Of Domestic Relations," (2 R. S. 148,) to require the husband to pay any sums necessary to énable the wife to carry on the suit, during its pendency,” but I know of no statute nor law which authorizes a judicial tribunal to compel a husband to furnish his wife, before final decree, with a house or furniture, or horses, or any other specific article, except money, in such sums as may be necessary to enable her to carry on the litigation, including, of course, the expenses of her own proper and suitable subsistence. I may add, that even if the power to grant this order as, or as an increase of/an allowance, existed, the propriety of exercising it in this case might well be doubted ; for, an allowance to the wife pending the suit is always much smaller in proportion than a permanent provision after decree; (Lawrence v. Lawrence, 3 Paige, 267;) and, as a general rule, temporary alimony ought to be limited to her actual wants. (Germond v. Germond, 4 Paige, 643.)

The motion must be denied.


author: McCunn, J.

text:
    Max Maretzek, plaintiff and appellant, vs. William Cauldwell and another, defendants and respondents.
    1. Although, in an action for a libel, charging in general terms the plaintiff with a specific crime or vice, such as theft, dishonesty or the like, an answer which justified such libel was demurrable for not setting out the specific acts warranting such charge, yet, under the Code of Procedure which allows a motion to compel a defendant to make his answer more definite and certain, in an action for a libel charging certain exhibitions of the plaintiff with being such as to be an unfit resort for respectable persons, and in connection therewith the frequent attendance of persons of cerfetin specified immoral or illegal occupations or pursuits upon such exhibitions; Held that it was unnecessary in an answer justifying such supposed libel, to do more than reaffirm the statements.contained therein, without specifying the names of such persons. Such an answer is good on demurrer, whatever it may be on a motion to make it definite and certain.
    2. Defenses in an answer will not be stricken out for redundancy," unless they are obnoxious to that charge by their verboseness and repetitiousness.
    3. The statement of mitigating circumstances in an answer, although set up as a defense to an action for a libel, does not thereby render it a pleading, so as to be liable to be required to be made more definite and certain. Its sufficiency as a notice must be determined on a trial. The cases of Graham v. Stone, (6 How. Pr. 15,) Brown v. Orris, (Id. 376,) and Newman v. Otto, (4 Sandf. S. C. 21. 669,) approved of, and -the authority of Bush v. Prosser, (11 N. T. Rep. 347,) upon that point, doubted.
    4. The defense of a defendant who justifies such a libel is sufficiently definite and certain, without stating the names of improper persons who he charged frequented the plaintiff’s exhibitions, where he states them to be unknown to him.
    5. Whether a defense of a defendant, justifying such a libel, is sufficiently definite and certain where he does not give the names of agents of the plaintiff, and subscribers to his exhibition, whom he charges with furnishing such improper persons with tickets of admission thereto. Quiere, per McCuxir, J.
    (Before Robertson, Ch. J., Monell and McCunn, JJ.)
    Heard-1864;
    decided November, 1864.
    This was an appeal from, an order made by Chief Justice Robertson, at general term, on the 30th of April, 1864, overruling a demurrer by the plaintiff to -several defenses of the defendant; denying a motion to strike out some parts of the answer as redundant or irrelevant, and to require the defendants to make other parts more definite and certain. Which demurrer and motions were heard together.
    The action was for damages by means of libels which were set forth in the complaint. -
    The complaint set out as a first cause of action, the following language, in a publication by the defendants, as referring to operatic performances or exhibitions whereof the plaintiff was'manager, and claimed the same to be libelous: “The only apology for an opera presented to the public, is such an exhibition as no respectable member of the fair sex could patronipe without a sacrifice of both taste and modesty, and without the risk of coming in contact with the characters who now make it their rendezvous.” The defendants justified such statement in their answer, by reiterating it nearly in the same words, without specifying any one who made such place their rendezvous.
    The second cause of action set out in the complaint as libelous, and contained in a publication by the defendants, was in the following words : “ The Academy of Music, (referring to the exhibition so conducted by the plaintiff,) was under a ¿loak 9 9 Whispers did begin to circulate that the Academy of Music was hardly the place for modest and respectable women, and that 9 9 dead head or free tickets had been furnished to people, whom no decent citizen could wish to see beside liis wife and daughter, and (scarlet women' blazed forth in all their shame from parquette, dress circle and box of” the “Academy of Music, and that the lobbies thereof became infested with representatives from the worst city gambling hells, and that owners of pocket books and watches were compelled to keep a bright look out for their valuables,” and other comments. The defendant justified such publication by reiterating it in nearly the same words, without designating the persons so referred to as frequenting the place of such- exhibitions. 1
    The defendants set up as their sixth and seventh defenses, that they were credibly informed of the facts stated in the publications complained of, and believed the same to- be true, and were requested by the plaintiff to speak of his exhibitions for the benefit of the public, and they believed that it was for the benefit of the public and the plaintiff they should be advised of such facts, and-that they made such publication in the course of their business, and without any malice towards the plaintiff.
    They also set up in their answer, as a fourth and fifth and eighth defense, in mitigation of damages, <the truth of the statements contained in such publication, in their very words, and also the publication of a book by the plaintiff, in which he confessed he was a charlatan in opera management * * and substantially boasted of his success and ability in humbugging the opera public.
    They also set up in such answer, as a ninth defense, both as a justification and matter in mitigation of damages, that the plaintiff's operatic exhibitions were disgraced by an attendance * * of pickpockets and of * * kept mistresses, courtezans and boarders in houses of assignation and * of prostitution, whose names ‘ were to the defendants’ unknown, attended by their male keepers, friends and admirers, also unknown, which several persons were ° * brought there under the cards of free admission furnished by the plaintiff's regular agents.”
    The plaintiff, besides demurring to the first three defenses, gave notice of a motion to compel the defendants to make the fourth, fifth, sixth, seventh, eighth and ninth defenses more pertain, and to strike out the sixth, seventh and ninth defenses, and part of the eighth.
    The demurrers to the first, second and third causes of action were overruled, and the motion to strike out and make "more definite and certain the other defenses, was denied. From the order overruling such demurrer, and denying such motion, the plaintiff appealed.
    The following opinion was delivered at special term, upon overruling such demurrers and denying such motion.

      Robeetson, J". The first statement in the answer as a defense is not demtirrable, because it merely tabes issue on allegations in the complaint. (Code, § 153. Smith v. Greenin, 2 Sandf. S. C. R. 702.) If they áre immaterial, the only remedy for any prejudice arising therefrom to the plaintiff, if they stood alone, would be to move for judgment; and if they seriously incumbered the record, to strike them out under section 160 of the Code. Whether he would be successful in the latter motion may be doubted. (King v. Utica Ins. Co. 6 How. Pr. 485.)
    The only question under the demurrer to the second and third defense is, whether the charges in the defamatory publication complained of are so specific that an averment of their truth is sufficient as against a demurrer. Averments, in an aswef, of specific facts are unnecessary, when the accusation is general of stealing, dishonesty, and the like. (Anon. 3 How. Pr. R. 406. Fry v. Bennett, 5 Sandf. R. 54.). But the charge in the publications in question of the unfitness of the plaintiff’s exhibitions for the resort of respectable persons, is accompanied by specific charges of persons of specified immoral and illegal pursuits and occupations, by the plaintiff’s permission and encouragement, which is sufficient to make similar averments in a defense á good pleading, as against a demurrer. (Van Wych v. Guthrie, 4 Duer, 268: S. C. 17 N. Y. Rep. 190, sub nom. Van Wych v. Aspinwall.) If the plaintiff wishes further information, the Code (§ 160) furnishes ample remedy for any defect in the definiteness and certainty of the answer. The demurrer, must therefore be oyerruled, and the plaintiff left to his remedy finder that provision.
    The motion also to strike out the sixth:, seventh and ninth defenses, as redundant or irrelevant, must be denied, as they allege, new matter and are not so verbose or repetitious in their statement as to subject them to that objection.
    The motion to render more definite and certain the fourth, fifth, sixth, seventh and eighth defenses, raises the question how far mitigating circumstances set up in an answer in an action for a libel in connection with a defense of the truth of the publication, under the Code, (§ 165,). constitute a partial
      defense so the action so as to require to he pleaded. If the allegations of mitigating circumstances in an answer be a mere notice, they would not come within the 160th section of the Code, which requires a pleading to be made definite and certain only where the precise nature of the defense is not apparent.
    In the case of Newman v. Otto et al. in this court, (4 Sandf. S. C. R. 669,) it was held by Judge Duer, that such allegations operated as a mere notice, and were not a defense. Because, if pleaded alone, they might be struck out as frivolous. In Graham v. Stone, 6 How. Pr. R. 15, and Brown v. Orvis, Id. 376, both cases in the Court of Appeals, Justices Johnson and Harris held separately and respectively that no facts could be set up in an answer in mitigation of damages, except when accompanied by an averment of the truth of the charge. The doctrine so laid down seems to have been disapproved of, by Justices Allen and Selden in a subsequent case in the Court of Appeals. (Bush v. Prosser, 11 N. Y. Rep. 347.) The question.of its soundness, however, did not fairly arise, nor was its repudiation involved in or necessary to the decision of that case. The sole question in it was, whether evidence offered on the trial, of bad conduct, on the part of the plaintiff, similar to that of which the defendant accused him, was admissible. There was no justification of the truth of the charge in the case, and although the defendant had set out in his answer the facts, of which he offered the evidence on the trial, it was not necessary to hold that they must be pleaded in order to warrant its admission. Ho objection could have arisen on that score, for whether those allegations were a mere notice or formed a pleading, the evidence was equally admissible under either theory.
    Justice Allen seems to have assumed, in that case, as unquestionable, that any thing given in evidence to reduce damages, either in an action of tort or contract, was- a defense within tire meaning of the Code, (§ 150,) which allows as many defenses to be set up as the defendant may have. He takes no notice of the distinction in that respect between torts and contracts so admirably pointed out by Judge Duer in Newman v.
      Otto, (ubi sup.) which is, that a partial defense in an action on a contract necessarily reduces the damages, debt or sum claimed, while in one for tort, the effect of mitigating circumstances is uncertain. The jury may give only the same damages, whether the circumstances offered in reduction are proved to have occurred or not. The same cause, of action remains, whether the damages arising from it are aggravated or mitigated. In the former case, no issue could be taken on the matter of aggravation, (Steph. on Plead. 243;) the reason is equally good why it should not be on matters in diminution. Hence, while partial defenses in an action on a contract must be pleaded, (McKyring v. Ball, 16 N. Y. Rep. 297 ; Houghton v. Townsend, 8 How. 441 ; Gleason v. Moen, 2 Duer, 640; Barr v. Baker, 9 Mo. Rep. 840,) the whole current of authorities are against the right or duty to set up circumstances in mitigation, except in actions for tort, unless in an action for a libel or slander, where the charge is justified. (Rosenthal v. Brush, 1 Code R., N. S. 228. Scheider v. Schultz, 4 Sandf. 664. Saltus v. Kipp, 5 Duer, 646. S. C. 12 How. Pr. 343. S. C. 2 Abb. Pr. 382. Gilbert v. Rounds, 14 How. Pr. 46. Travis v. Barger, 24 Barb. 614.) If such circumstances constituted the whole answer, no judgment, within the meaning of the Code, could be given on an issue formed by a reply, because it could not be the final determination of the lights of the parties, (§ 245,) without an assessment of damages ; and there is nothing in the Code to indicate that it was designed to deprive the defendant of the formerly existing right of reducing the damages on an assessment by evidence in mitigation. The very section (65) which provides for the admission of such circumstances, notwithstanding the publication is justified, and there is a failure to establish such justification, accompanies the permission to 'a defendant to avail himself of that provision, by requiring the circumstances to be set out in the answer with the justification, but only in reduction of damages. If the framers of the Code had" considered circumstances in mitigation to be a defense, and an answer to a cause of action within the meaning of the 150 th section, there would have been no necessity to require a defendant to set up such circumstances, hut simply to have said that setting them up as a defense .with a justification, should not deprive the defendant of the right of proving them, whatever became of the justification. . But the 165th section contains two provisions, first, for alleging such circumstances in the answers along with a defense of truth, and secondly, of allowing evidence of them when so alleged, notwithstanding such defense. The injustice of the former rule, as to allowing matters in- mitigation before a sheriff’s jury, is not so apparent as to favor such an interpretation'. I am compelled, therefore, to follow Judge Duer’s opinion already alluded to; sustained as it is by its own reasons, and the opinion of Justices Johnson and Harris already referred to, (Graham v. Stone, and Brown v. Harris,) in place of the views of Justices Allen and Selden in the case also before referred to, (Bush v. Prosser,) which as they were not necessary to the decision of the case, I may be excused for looking upon as obiter dicta. The motion to make definite and certain the statements in the answer of ,circumstances in reduction of damages, must therefore be denied.' They could not be struck out as frivolous, because they accompany a justification of the publication complained of, which is permitted by the Code. (§150.)
    I think the ninth defense sufficiently definite and certain as to the name of the sharpers of both sexes and persons of improper character who frequented the plaintiff’s exhibition by the permission of his agents, because the defendants state such names to be unknown; but not so as to the agents of the plaintiff alleged to have furnished free tickets of admission to such improper persons, because he is entitled to be prepared to prove their want or excess of authority. So also as to the subscribers and stockholders who have' complained to the defendants, whose names it must be presumed they know, if they know them to be such subscribers or stockholders. In those respects the motion must be granted, as to the names or other description of such agents and stockholders, but denied as to the rest.

      Eo judgment can be given on the demurrers, as they merely raise an immaterial issue of law, but -an order may be made overruling them for that reason, and the motion must be denied except in the matter before stated. Eo costs can be allowed to either party on the demurrers and motion; and there being no judgment, there is no need of giving leave to amend, but. the plaintiff may withdraw his demurrer if he finds it necessary.

      S. B. H. Judah, for the plaintiff, appellant.
    I. In civil actions for libel, the defense of a justification must be in accordance with section 165 of the Code. The true construction of this section is, that, although the truth may be given as a justification, yet if the truth itself is unjustifiable, that is, published maliciously and with an evil intent, and for no good purpose, it is no justification. (Holt’s Law of Libel, 48, &c.) 1. In setting up the truth as a justification, the defendant is bound to show that the publication of such truth was for justifiable ends, and with good motives. (26 Wend. 383.)
    2. The facts on which he relies must be so specifically set up that they apprise the plaintiff of the defense. (Holt’s Law of Libel, 280-82. Newman v. Bailey, cited 1 T. R. 750. Lanson v. Street, 2 Chit. Pl. 503-506 and cases cited. 1 id. 487, in notes.)

    ■ 3. The Code has not altered the substance or form necessary to be pleaded ip a defense of the truth in justification.
    II. The causes set out in the demurrer to the second separate defense are good causes of demurrer.
    1. Where a defamatory charge is made in general terms, it is not sufficient to answer that such charge is true. The justification must be made by a specification of the facts which are relied on to establish the truth.

      (a.) The plaintiff is .not compelled to make an answer, bad in substance, good, by calling on the defendant to make it definite and certain. (5 How. Pr. 470. 6 id 258-84. 3 id. 406, and see cases cited in note to § 165 of Code, Voorhies’ ed.)

      (b.) By a plea that is defective in form apd substance no jpstification is made out, and where the libel in its character is general, a justification on the ground of its truth should have set out the facts specifically. (Fry v. Bennett, 1 Code R. (N. S.) § 238.) The matter,-facts, time, place and names of persons must be set out particularly. (Fabricotti v. Launay, 1 Code R. (N. S.) 121. 25 How. Pr. 419.)
    (c.) An answer is insufficient not only where it sets up a defense groundless in law, but when, in the mode of stating a- defense otherwise valid, it violates the rules of pleading. (5 Sandf. 54.)
    2. Even if well pleaded, the matter relied on in the answer does not amount to a justification. The defendants have no right to libel by even publishing the truth. Their position of journalists does not license them to attack the character or business of any man in the community. If privileged, such privilege does not appear in the answer. But the public journalist has no privilege to publish a libel beyond any citizen, who has no printing press. It is no part of the duty of a person conducting a newspaper to slander and defame character. It is simply his business to disseminate useful knowledge among the people, and the current events of the day happening at home or abroad. (Hunt v. Bennett, 19 N. Y. Rep. 173. Hotchkiss v. Oliphant, 2 Hill, 513, per Nelson, J.)

    III. The positions in the second point apply in every respect to the third separate defense or answer, with additional objections:
    1. In the third answer there is an attempt to make a double issue; one that the facts are true, and the other, that the calumny originated from and was circulated by others than the defendants. The Code has not altered the cardinal principles of pleading a double plea is bad for such duplicity. It contemplates a single answer, (§ 150.) Each separate defense is to be separately pleaded. (4 Kern. 469. 21 N. Y. Rep. 399.)
    2. If the defendants sought to shift the origin of the libel to others, even the giving of names and particulars would not relieve thorn from responsibility. Such disclosures would not even mitigate damages. (Dale v. Lyon, 10 John. 447. Mapes v. Weeks, 4 Wend. 659. Inman v. Foster, 8 id. 602.)
    3. But even if the allegation that other persons disseminated the libel forms a justification, the answer is bad in substance, in not setting out the names of the persons, time, place, and other particulars or specification. (2 Chit. Pl. 507, n. f. 7 T. R. 17-19. 2 Fast, 426.)
    4. The answer or defense is not as broad as the charge, and therefore does not amount to a justification. Each separate defense or answer must contain all that is requisite to answer the whole cause of action. (Code, § 222, cases cited in note. 7 Abb. 378. 2 Bosw. 694. 4 id. 391.) Resort cannot be had to one plea, to make another full, (4 Bosw. 391. 10 Abb. 266.)
    IV. The matters of the 6th, 7th, and part of the 8th defense, moved to be stricken out, do not amount to a defense, nor could they be given in evidence in mitigation of damages. It is no excuse for irrelevant and redundant matter that it is new. .“•Irrelevant,' means matter impertinent, frivolous, and having no bearing on the issue. It is an incumbrance on the record.”
    Mitigating circumstances are those which the well defined rules of law allow in evidence in mitigation of damages. (1 Code Pl. N. S. 181.) Newspaper editors or journalists have no privilege to libel or slander. The matters set up in the 6th and 7th answers are, therefore, surely not mitigatory. Nor is the part of the 8 th answer complained of admissible in evidence (being foreign to the issue.) The rule is clear when the matter does not amount to a' mitigation; it should be stricken out as irrelevant and redundant. (3 How. Pr. 406. 6 id. 15. 10 id. 128.)
    2. The 6th and 7th defenses are not accompanied by a jus-' tification, but only refer to denials of malice in the other answers. If every separate defense stands by itself, irrespective of the other answers, and the opinion at special term, that mitigatory circumstances can only be pleaded with a justification, be correct, then the 6 th and 7th answers, consisting of matter only pleaded in njitigation, are frivolous. They do not amount even to a mitigating defense, and.make an immaterial issue, and being such are irrelevant. (Abb. 331. 4 Sandf. 668. 1 Code, R. N. S. 102, 404. 5 How. Pr. 476.)
    3. The charges or allegations in the answers are general, and do not amount to mitigating circumstances. (Russ v. Brooks, 4 E. D. Smith, 645.) They do not apprise the plaintiff of the specific grounds of the defense ; general report, common gossip, popular clamor, are not admissible in evidence as mitigating circumstances, and are irrelevant. (6 How. Pr. 15. 13 id. 97.) An answer setting up mitigating circumstances, if irrelevant, will be stricken out on motion. (10 How. Pr. 128.)
    Y. The 4th, 6th, 7th, and part' of the 8th defenses in the answer, are not sufficiently definite and certain, and should be made so.
    1. Matter set up in mitigation of damages in a suit for slander or libel, is a defense within the meaning of the Code. It has been questioned whether it amounts to a defense, standing alone, but there is no doubt, when accompanied by a justification in the same answer, such a defense is not a notice, but a part of the defense or answer.

      (a.) The opinions of Selden and Allen, JJ. in Bush v. Prosser, (11 N. Y. Rep. 347,) are a correct exposition of the statute, sections 150 and 165. The language of the last section is: “ The defendant may in his answer allege both the truth of the matter charged as defamatory and any mitigating circumstances.” However subtle the reasoning of Duer, J. in Otto v. Newman, (4 Sandf. 669,) it cannot destroy the plain words of the statute.

      (b.) The distinction is obvious, that itr libel and slander, the Code specifies the kind of defense that may be set up, while it leaves matter in mitigation, in other torts (assault and battery, &c.) to be given in evidence to reduce the damages ; in other words, in this one case, it directs the mitigating circumstances to be pleaded.
    (c.) The very nature of the case is such, where the charge is general, the matter in mitigation should be specifically set out in the answer, to apprise the plaintiff, what he-is to meet.

      2. Even if taking the name of an answer, it can be characterized as in the nature of a notice, it still should be specific, and if not, justice would direct it to be made definite and certain ; the question of its effect should not be left to the- time of trial to be decided whether, under a notice general in its charges, specific matter could be given in evidence.
    3. The plaintiff has the right to demand under section 160, that a general pleading should be made definite and certain, or it should be stricken out as irrelvant.

      A. O. Hall, for the defendants, respondents.
   By the Court,

McCunn, J.

The appeal in this case is from an order made at special term by the chief justice overruling the demurrers of the plaintiff to the- second and third portions of the defendants’ answers, and also denying the plaintiff’s motion, which is of an extraordinary mixed nature, to compel the defendants to make more certain and definite the fourth, fifth, sixth, seventh, and eighth defenses of the answer, as well as to strike out as irrelevant and redundant the sixth and seventh and part of the eighth defenses of said answer and any of the defendants’ answers, as specified in the plaintiff’s notice of motion at special term.

In regard to the question of the demurrer, there can be no doubt that the chief justice was clearly right in overruling it. The portions of the answer demurred to certainly do not contain new matter that constitutes a counter claim or defense, as provided for by the 153d section of the Code. . These portions of the answer merely deny the allegations of the complaint, and are properly, pleaded.

The case cited by the chief justice (Smith v. Greenin, 2 Sand. 702) is fully sustained by the case of Newman v. Otto, decided by Chief Justice Duer, (4 Sandf. 669.)

The motion to render more definite and certain the fourth, fifth, sixth, seventh and eighth defenses was properly denied. Such allegations operate as a mere notice, if they form part of the answer.

This doctrine was so held in the case of Graham v. Stone, and Brown v. Orvis, both being cases decided in the Court of Appeals, and is so well settled that no doubt .can now arise in regard to this principle in actions for libel and slander. So also in regard to the ninth defense of the answer.

It is certainly definite enough on this principle to fully apprise the plaintiff of the defense to be adopted on the trial, and to prepare him-to meet the issue. It specifically alleges that the cards of free admission were furnished by the plaintiff’s regular agents, and that some of the stockholders and subscribers complained to the defendants of said things, and such foregoing matters were publicly canvassed by the general public.” The chief justice, however, seems to think that the defendants should be compelled to allege the names of these regular agents of the plaintiff, and also of the stockholders and subscribers who complained to the defendants. But this he bases simply upon the presumption that the defendants knew their names, for the reason that they do not allege that their names are unknown. On the general principle maintained by the learned. chief justice, and sustained by the cases cited by him, I can see no reason for an exception in this regard, and although fully concurring with him in his very lucid and able opinion, I must differ with him in regard to granting the motion to compel the defendants to allege the names of the agents and stockholders, and subscribers referred to in that portion of their answer; but this portion of the order not having been appealed from by the plaintiff, the entire order at special term must be affirmed with costs.


author: By the Court, Robertson, Ch. J.

text:
    Thomas Murphy et al. plaintiffs and appellants, vs. Herman Boker et al. defendants and respondents.
    1. The rejection of evidence which although in its nature competent to establish the fact proposed to be proved, is wholly irrelevant to the sole issue submitted to the jury, is not a ground of exception.
    2. Even though the court would, if sitting in the place of the jury, have come to a different conclusion from that reached by them, that will not warrant an interference with the.verdict, where there is no such preponderance of evidence as to induce the belief that the verdict originated in either passion, prejudice, or a mistake.
    3. The court can never exclude relevant testimony because it does not establish at once the issue to which it relates. The different links may i e introduced in succession. . • •
    4. The party against whom such testimony is introduced is amply protected against any prejudice, by his right to call on the court to direct the jury to disregard it, for all purposes, where it is not prima facie evidence of any material issue.
    5. If his counsel neglects to do so, the court has a right to presume he does not think the evidence of sufficient importance to require such a caution. And it is no sufficient ground of complaint that the court, in such a case, has not volunteered to warn the jury against being misled ; nor a reason for granting a new trial on the ground of an oversight.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November 11, 1864;
    decided December 31, 1864.
    Some time prior to the 16th day of September, 1862, the plaintiffs and defendants entered into a negotiation for the sale by the defendants to the plaintiffs of a lot of buffalo robes, which was consummated on the 16th of September, and a memorandum was signed by the defendants as follows, viz :
    “ Hew York, Sept. 16th, 1862.
    We hereby state that we have sold this day, to Messrs. Murphy, Griswold & Co. 19 Murray street, about two hundred bales of buffalo robes, plain seas. Ho. 1, more or less, now stored at 29 Dey street, at price of $5.37J per robe, net cash on delivery. Delivery of fifty bales to be made on next .and each succeeding Monday. Herman Boker & Co.”
    The words “ plain seas Ho. 1,” was interlined in the memorandum. On the 22d of September, the defendants delivered fifty bales of the robes from Ho. 29 Dey street, in pursuance of such memorandum, which the plaintiffs returned to the defendants and refused to receive,. The defendants, on the same day, requested the plaintiffs to fulfill their contract, which they did not do. The plaintiffs refused to receive the robes, and never did accept any 'of them. The plaintiffs then commenced this action, averring that the defendants had refused to deliver the goods sold to them, and claimed damages in the sum of $3000 for nondelivery of the goods sold pursuant to the written memorandum. The defendants, among other defenses, allege that they tendered the robes agreed to be sold, and that the plaintiffs refused to accept them, &c. There was no dispute about the-fact that the robes mentioned in the written memorandum as being stored at Ho. 29 Dey street, were tendered to the plaintiffs by the defendants, and that they declined to receive them upon the ground that they were not “ plain seas. Ho. 1” robes. The only question submitted to the jury was, whether or not the robes tendered to the plaintiffs were what are known in the trade as “ plain seas. No. 1 ” robes. The jury found this in favor of the defendants, rendering a verdict for them for the costs. And from the judgment entered on such verdict, and from an order made at a special term, denying a motion for a a new trial, the plaintiffs appealed.

      A. R. Dyett, for the plaintiffs, appellants.

      J. R. Warner, for the defendants, respondents.
   By the Court, Robertson, Ch. J.

The learned judge, before whom the cause was tried, submitted a single issue of fact to the jury, to wit, whether the articles tendered by the defendants, in satisfaction of the contract in controversy, were such as were generally known to the trade as plain seasonable No. 1 (Buffalo) robes, and on all other points ruled as requested by the plaintiffs. He called their attention to the fact, that there was a certain assortment of robes known in the trade as P. Chouteau’s No. 1 plain seasonable,” and that was a standard description. ® ® But the words used in the contract were “ plain seasonable No. 1,” the word “ Ghouteau” not being introduced. No exception was taken to the charge. A motion for a new trial on a case was denied. An appeal is .taken from the order denying it, as well as the judgment. The main ground for moving to set aside such verdict is, that it was so clearly against evidence as to shew partiality, prejudice or ■ misapprehension on the part of the jury. And the admission of evidence to prove a mistake in the contract, which it failed to establish, is supposed to have contributed largely to such result.

The testimony of six witnesses was directed to the issue thus submitted to the jury. Two beside the plaintiff, Murphy and their porter, (Ball,) were introduced on the part of the plaintiffs, to wit, Mr. Bourton, a dealer in buffalo robes, and his porter, (McKenna,) and two on the part of the defendants, one of them, to wit, Mr. Kerbeck, a dealer in furs, and his salesman, (Monroe.) No meaning seems to have been attributed to the word “plain” beyond its ordinary sense. “ Seasonable” was held to be applicable to skins obtained in the winter season, full grown, full furred, of dark color and good pelt. The principal difficulty was to settle the meaning of the term “ No. 1,” either with or without those words ; robes sent to the market, as Chouteau’s, in the original packages, and sold as No. 1 plain seasonable. Chouteau’s are understood to be of a certain kind, and are not generally examined by buyers. (After examining the testimony, the court proceeded.)

The onus lay on the plaintiff of establishing what was meant by plain seasonable No. Vs; and if it meant only according to Chouteau’s standard, that it did so even when no such name was expressed. There was evidence enough in the case to sustain a finding that it- did not, and that it was intended merely to describe an assortment of a high character within ten or twenty per cent of that standard, and that the limits were very vague. It is evident from the whole testimony of the plaintiff and his porter, that they were testifying as to the inferiority of the goods tendered, measured by the Chouteau standard. Neither of them describe the nature of the imperfection or inferiority stated by them, although Ball described the different grades of robes and the titles by which they are known. There was room therefore for the jury to infer that there was no such absolute standard as plain seasonable No. l’s without Chouteau’s name ; or that it had a wide scope as to the quality of the goods; or that the plaintiffs did not make out a specific difference between the goods tendered and that standard. That verdict has been sustained by a justice of this court at special term in the exercise of his discretion. And even if we would have come to a different conclusion sitting in the place of the jury, that would not warrant •an interference with the verdict. (Stoddard v. Long Island R. R. Co., 5 Sandf. 180. Dart v. Farmers’ Bank at Bridgport, 27 Barb. 337.) There is. certainly no such preponderance of evidence as to induce us to think that the verdict of the jury originated in either passion, prejudice or a mistake. (Cohen v. Dupont, 1 Sandf. 260.) They were directed to confine their attention to a single issue in the clearest terms,. and were expressly warned against taking into consideration the fact that the goods tendered were those in the store mentioned in the memorandum.

It is said, however, that the jury were allowed to hear and were not directed to disregard certain testimony admitted to establish an issue made by the defendants of a mistake in the contract, with a view to its reformation. It is very evident that the court never exclude relevant testimony because it does not establish at once the issue to which it relates. The different links must be‘introduced in succession. The party against whom it is-introduced is' amply protected against any prejudice by his right to call on the court to direct the jury to disregard it for all purposes, where it is not prima facie evidence of any material issue. Where his counsel neglects to do so, the court has the right to presume he does not think the evidence of sufficient importance to, require such a caution. It is no ground of complaint that the court in such a case has not volunteered to, warn the jury against being misled, or a reason "to grant a new.trial on the ground of an oversight.

Every exception in the case bears on matters relating to the sole issue submitted to the jury. In reference to evidence, therefore, rejected as not bearing on such issue although competent for other purposes, no exception would lie. (Purchase v. Mattison, 6 Duer, 587.) An exception was taken to a witness being required to answer what the quality of certain robes bought by him from the same lot as those bought by the plaintiff was, upon the ground that the defendants admitted in their answer that the latter did not correspond with the contract ; whereas the answer in its second defense alleged a tender to and refusal by the plaintiffs of the baffalo robes agreed, to be sold, which took away the ground of such exception. The plaintiff Murphy was prevented from testifying whether any thing was said in his negotiation with the defendant Frinke about Icnowing what such robes were. That was claimed to be admissible because such defendant gave as a reason on his cross-examination by the plaintiff’s counsel for not having .stated that such robes were plain seasonable No. 1. that he did hot know -its meaning, which was quite different from his stating that as a reason at the time. A dealer in robes (Her-beck) was asked what he regarded as plain seasonable No. 1 robes. Upon which he certainly had a right to express his opinion as an expert. The defendant Erinke was asked whether in the negotiation for the sale he stated what the quality of such goods was ; which was admissible to contradict a pre-' vious statement of the plaintiff Murphy that Erinke gave him a statement that they ivere plain seasonable No. 1. These constituted the only exceptions to the testimony except one to the exclusion of a question put to the plaintiff Murphy to detail the conversation by which he and the defendant Erinke got at the price of the goods, which was entirely immaterial.

The verdict of the jury being warranted by the testimony, and no exception to evidence being well taken, it will not be necessary to consider the other views taken by the counsel for the defendant. The grave questions: whether the contract was not void under the statute of frauds ; whether a particular parcel of goods in a particular store only was sold ; whether, the use of the words plain seasonable No. 1, made a representation or a warranty, and if the former, whether the defendants were liable without proof of a fraud ; or if the latter, whether the refusal by the plaintiffs to receive the goods did not rescind the contract, are not necessary to be passed upon.

The order denying a new trial, and the judgment, must be affirmed, with costs.


text:
    Oscar H. Clough, plaintiff and respondent, vs. Patrick Murray, defendant and appellant.
    1. So far as a release from the continuing obligation of a specialty, or its modification, and the satisfaction of a liability incurred under past breaches are concerned, a distinction is observed between the modes of so releasing, modifying and satisfying them. An instrument of equal solemnity, unless in case of performance, is necessary to discharge the first, or modify it, except as to time of performance, and then only by way of estoppel; so that an acceptance by parol, neither of an executory agreement nor a chose ^in action, in consideration of a .parol contract to modify or discharge it, Will operate as such modification or discharge, even although such new agreement be subsequently performed; whereas, a cause of action arising under a breach of covenant may be barred by the acceptance by parol of a new executory agreement in satisfaction thereof.
    2. All the cases on this subject lay great stress on the existence of some agreement to accept the new undertaking in place of the performance of the old, and the distinction between accepting the acts agreed -to be done, or the thing to be delivered, in satisfaction, and an acceptance of the mere agreement to do or deliver them in the same way, is preserved. There must be an accord.

    3. Hence it is necessary, in all cases, to allege and prove, either by the terms of the new contract, or evidence aliunde, the existence of an agreement to accept, in satisfaction of the prior contract such new contract itself, and not the mere performance of its terms.
    4. The plaintiff proposed in writing, in June, 1861, to do three things on certain terms therein specified, viz: 1st, To release the latter from all the obligations of a contract between the parties, made in October previous; 2d. To return to him four of certain promissory notes therein mentioned; 3d. To release him from all obligations in selling certain merchandize, (plumbago.) The defendant was required, among other things, to discharge a certain note of his, in which a certain sum (§540) was due; to pay a small sum ($21) for interest; and to deliver over certain notes of his own for certain amounts, as well as notes of S. & 0. It closed by the plaintiff agreeing to return such four notes when the defendant had paid the note for $540, and the $21, to the plaintiff, and have passed over to him such notes of S. G. and his own, or to have them ready for delivery on a certain day which should be prior to a specified day in Jidy; and that on those terms he would give the defendant a receipt in full for all demands, (except a certain specified note,) cancel the contract, and take also a receipt in full for ail demands. The referee found, as facts, not only the absence of any understanding between the parties that the making and acceptance of such proposition, and the defendant’s assumption, thereby, to perform what was therein required of him, should be a substitute for, or in extinguishment of, the original agreement, or of the defendant’s promises as maker of the five notes therein mentioned, but an actual understanding that only ~h\s performance of the terms of the proposition should determine and put an end to the original agreement, and his liability as maker of the notes.

      Held that this was a mere accord, "where performance, and only that, was to he satisfaction, or work an extinguishment of prior liabilities; and that the terns ■never having been complied with, the proposition was no bar to an action upon one of the defendant’s notes specified therein.
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November 15, 1864;
    decided December 31, 1864.
    This is an appeal by the defendant from a judgment of this court, on the report of a referee, in favor of the plaintiff against the defendant.
    The action was brought upon a promissory note, dated October 1st, 1860, for $1046.67, made by the defendant, payable nine months after date, to his own order, and by him indorsed ; and the note was one of five given by the defendant to Cyrus Butler, Richard Butler and the plaintiff, pursuant to the first article of an agreement, between the parties and others, dated October 1, 1860, a copy of which was annexed to the answer.
    The action was refered to Judge Bosworth, as referee, who found the following facts :

      First. The defendant made his promissory note in writing, dated the first October, A. d. 1860, whereby he promised to pay, nine months after the date thereof, to the order of himself, $1046.67, for value received, and indorsed and delivered the same ; and the same afterwards, and after the maturity thereof,' for a valuable consideration by the plaintiff paid, came into his hands by delivery before the commencement of this suit, and he is the owner and holder thereof, and the same has not been paid, nor has any part thereof, and the amount justly due and owing from the defendant to the plaintiff, upon the said note, at the date of the report, was $1261.78..

      Second. On or about the first day of October, a. d. 1860, Richard Butler and Cyrus Butler, together with the plaintiff, Oscar H. Clough, as the parties of the first part, and the defendant as the party of the second part, made and entered into certain articles of agreement under their hands and seals, bearing date on that day, a true copy whereof was annexed to the defendant’s amended answer.

      On or about the first day of October, a. d. 1860, pursuant to the said articles of agreement, and not otherwise, the defendant made and delivered to the said Richard Butler, Cyrus Butler and Oscar H. Clough, five promissory notes, dated October 1, 1860, payable to his own order, at five, seven, nine, eleven and twelve months from the date thereof, and by him indorsed, respectively, each for $1000, with interest from the first day of November, 1860, to the time of the maturity thereof, which interest, in the case of each note, was added to the said sum of $1000, and made a part of the aggregaté amount or principal sum for which each note was made. The note in the complaint (and in the first findings of fact above mentioned,) is that one of the said five notes which was payable at nine months from the date thereof.

      Third. The said Richard Butler, Cyrus Butler and Oscar H. Clough, on or about the first day of October, 1860, designated and appointed the said Cyrus Butler as their treasurer, pursuant to, and as provided in the fourth article of the said articles of agreement of October 1st, 1860. The said Richard Butler, Cyrus Butler, Oscar A. Clough and Patrick Murray, immediately after the making of said articles of agreement, proceeded to act under the same. The said Butlers and Clough, from time to time, prior to the 29th J une, 1861, sent to the defendant, at New York, plumbago, to be sold by-the defendant, and he made sales, from time to time, to different' persons, and on the 29th of June, 1861, there had been several sales of plumbago, on credit, appearing on the books kept by the defendant, and among others, a sale to one Jacob Seabury, which was then unpaid, and amounted, according to the books kept by the defendant, to $1697.07. The defendant, prior to June 29, 1861, had expended various sums for plumbago purchased by him, under and pursuant to said articles of agreement, and for storage, freight, cartage, packing and deliveries of plumbago from the mines, , and on the maturity of the first of the said five notes he was to be allowed, on account of the sums so expended, the sum of $498.50, in part payment of the said one of the said notes first maturing, and for the balance thereof he gave his own note for $537.01, payable June 5, 1861, Last said note, on the 29th day of June, 1861, was unpaid, was held by J. T. Sanger, and was estimated to amount, to the 29 th of June, 1861, to about' $450.

      Fourth. On the 29th of June, 1861, the said Cyrus Butler, as such treasurer, made a proposition in writing to the defendant, and made the same, as well on behalf of said Eichard Butler and Oscar H. Clough, as on his own behalf, and made the same by authority of .said Eichard Butler and Oscar H, Clough, and the same is in words and figures following, that is to say :
    “ New York, June 29, 1861.
    Hr. P. Murray, New York—
    Dear Sir : I propose to release you from all your obligations in the contract made between yourself, my brother, Oscar H. Clough and myself, to return you four of the promissory notes named in said contract, said notes being due, respectively, May 4th, July 4th, September 4th, and October 4th, 1861, and to release you from all obligations incurred in selling plumbago, except as hereinafter stated, on the following terms and conditions :
    You are to take up a certain note now in the hands of J. T. Sanger, which, with interest and expenses, now amounts to about................$540 00
    After which you will have paid out as follows i
    On account of note due March 4, 1861, .... 499 50
    “ “ as above mentioned,..... 540 00
    Storage, $9.82. Cartage, $12,50. Bill Eddy, $12.50, 34 82
    Add 67 kegs powder at $3.00,....... 201 00
    Making,............$1275 32
    You are to take in payment of above accounts on sales book
    of N. Y. B. L. as per mem. say,......$357 37
    55 bbl. Ground Plumbago,...... . . 510 00
    21 “ Crude “ 252 00
    19 “ Ground “ 125 40
    25 “ • Crude “ 300 00
    $1544 77

      For the account of Jacob Seabury, which stands on the books to the amount of $1697.07, one half of which was to be settled by note, I propose to take said note or notes without your endorsement. You agreeing to make the account as above good to me, and you are to take the merchandise half to your own account, giving us note or notes of A. Colburn of Philadelphia, to the amount of not more than $650, and for the bal. enough to make $800, (I agreeing to discount $47.04 from the mdze acct.) you are'to give me your own note at not longer than six months from July 1, ’61, I also agreeing to accept a conditional contract held by Seabury for 25, 50 or 75 tons. It is further agreed that in addition to the mem. basis of settlement herewith, you are to pay me on settlement of the papers, the sum of $21 for interest on unpaid notes. I agree to return the said four notes when you have paid the note of $540, (or about that sum,) and $21 to me, and have passed over to me said notes of Seabury, Colburn and yours, or to have them ready for delivery on a certain day, which shall be prior to July 10th ensuing. On these terms I will give you a receipt in full of all demands, except as relates to a note for bal, of the Sea-bury merchandise acct. cancel the contract, and take also a receipt from you in full of all demands,
    Very truly yours,
    Cyrus Butler, Treasurer.’’

      Fourth. Prior to the making and submission to the defendant of the said written proposition of June 29, b861, the defendant had ordered and forwarded to the said Butlers and Clough, the sixty-séven kegs of powder in the said written proposition mentioned. The defendant on the receipt of the said written proposition, and on or about the said date thereof, assented thereto, and so notified the said Butlers and Clough, and agreed to do and perform according to the tenor and effect thereof, the several matters and things therein named to be done and performed by him, It was not the understanding at the time of the said Butlers and Clough of the one part, and the said Murray on the other part, that the making of the said written proposition by the said Butlers and Clough of the one part and the assenting thereto, and acceptance thereof by the defendant, and his said agreement to do and perform, according to the tenor and effect of the said written proposition, the several matters and things therein named to be done and performed by the defendant, was, or was to be deemed to be, a substitute for the said articles of agreement of October 1st, I860,'and the several covenants therein .contained,'or of the promises of the defendant as the maker of the said five promissory notes in the second of these findings of fact mentioned, or was or was to be deemed to be a satisfaction or ex-tinguishment of the said articles of agreement and said five promissory notes, or of any or either of them, or of any part of either of them; on the contrary it was, at the time their understanding, and the understanding of each, of them, that performance by the defendant of the several matters and things in said written proposal mentioned to be done and performed by the defendant, and only the performance thereof according to the tenor and effeot of the said written proposition, would determine and put an end to the said articles of agreement, and the defendant’s liability as maker of the said five promissory notes or any or either of them.
    Fifth. The defendant was not able to procure the Seabury note or the Colburn note by July 10, 1861, and on the defendant’s representation to the said Butlers and Clough of the impracticability of obtaining the Seabury note, the said Butlers and Clough assented to so far modify the said written proposal as to accept- in lieu thereof the defendant’s note, for the amount of the Seabury" note, which the defendant was to procure and furnish. .
    And the said written proposition was further so far modified by the said Butlers and Clough that they waived performance by the defendant on or before July 10, 1861, and the several matters and things to be done by him as a condition to entitle him to the benefit of the said written proposition, on his actually doing and performing the several matters and things therein mentioned to he done and performed by him within such period as should be assented to and allowed by said Butlers and Clough for that purpose.

      Sixth. On the 20th of September, 1861, the defendant not having then done or performed any of the several matters and things in the said written proposition mentioned, and performed by him, except to deliver the sixty-seven kegs of powder as in the fourth of these findings of fact stated, and the said Butlers and Clough complaining of the delay of the defendant in the premises, the defendant on that day sent a note in writing to said Cyrus Butler, as representing said Butlers and Clough in the premises, which note in wilting is as follows, that is to say:
    “New York, Sept. 20th, 1861.
    Mr. Cyrus Butler, Dr Sir: I have not as yet arranged the money matter, and claim two weeks longer, or say the first of October to arrange our matters.
    If you wish, I will give you a note for the cash amount of our- settlement payable then, when I am certain to be in funds as well as Colburn’s note.
    Better than this I cannot do, and I beg of you to accede and you may rely on all our business ending well.
    Yours respectfully, P. Mubbay.”
    Cyrus Butler, on the same day by note in "writing acknowledging the receipt of the defendant’s last said letter, states that he is “ disposed to yield once more, but this time there must be no missfire.” He inclosed in it a note for $549.86, maturing October 4, 1861, being the amount to which the note for $537.01 would amount October 1, 1861, including interest to that day, and a notary's fee of seventy-five cents for protesting the said note of $537.01, to be signed and returned to him by the defendant. The matter referred to in the defendant’s said note of September 20, 1861, as “ the cash amount of our settlement,” was defendant’s said note of $537.01. The defendant signed the said note so enclosed to him, or drew one for the same amount, maturing October 4, 1861, and sent it the same day to said 0. Butler in lieu of and as a substitute for said note of $537.01, who received the same.

      Seventh. The defendant did not pay the said note of $549.86 at the maturity thereof, or subsequently, and on said fourth day of October, 1861, persuaded said Cyrus Butler to accept of an assignment of an account for goods sold by the defendant in the name of Winslow & Co. to Joseph Dixon & Co. on credit, to be paid for by the note of the latter, the said account amounting to about seven hundred and seven dollars ; the said assignment stating that the said note so to be given by Joseph Dixon & Co. was to be applied to the defendant’s “ note of $540 due 3d Oct. the difference, if any, to be applied on account of our settlement.” The note of $540 in said assignment of account mentioned, referred to the said note of $549.86, maturing October 4, 1861. The defendant on or before the 14th of October, 1861, obtained from Joseph Dixon & Co. their note for the said account so assigned by the defendant to Cyrus Butler, and on the 14th of October, 1861, in an interview between him and said Cyrus Butler, endeavored to agree upon some terms upon which said Butler would take the same at his own risk, but failing to do so, he thereupon refused to deliver it to the said Butler to be applied according to the terms and provisions of the new assignment of said account against Joseph Dixon & Go.; whereupon said Cyrus Butler then and there told the defendant that he had an absolute right to the delivery of the said note to himself, and insisted upon such delivery, which the defendant refused to make. The said Cyrus then notified the defendant that he should break up the contract of settlement, and would have nothing more to do with the defendant in reference thereto, and should hold him to the articles of agreement of October 1, 1860, and that the notes in the second of these findings of fact mentioned would be prosecuted.

      Eighth. On the 17th of October, 1861, the said Butlers and Clough, through the said Cyrus Butler, submitted to the de-' fendant a further proposition for a settlement, which last proposition the defendant declined to accept. Previously, and on or about the 16th of September, 1861, the defendant offered to the said Butlers and Clough to deliver to them the said note of Joseph Dixon & Co. and fulfill the -original proposition or contract of settlement in all particulars, so far as he was then able to do, and give his own- notes for the amounts for which by the contract of settlement they were to be given, and include in the amount thereof the amount of the note contemplated to be obtained from Colburn, if said Butler and Clough would not wait for the Colburn note until it could be procured. The said Butler and Clough, through the said Cyrus Butler, then distinctly notified the defendant that they would have nothing more to do with the defendant under the agreement for a settlement, or with any new notes to be given by him, and that he would be sued on the aforesaid notes which he had given. The said Butlers and Clough, subsequent to the refusal of the defendant on the 14th of October, 1861, to deliver to them the said note made by Joseph Dixon & Go. as heretofore stated, have not at any time agreed or consented to further extend the time for settling under the aforesaid written proposition of June 29, 1861, and the modifications thereof herein before stated, or that it should be deemed open and binding upon the parties thereto, or any or either of them.
    The referee’s conclusions of law upon the facts so as aforesaid found, were:
    1st. That the written proposition of June 29, 1861, and the acceptance thereof by the defendant, together constituted only an accord, and that actual performance according to the tenor and effect thereof, of the several matters and things therein mentioned to be done and performed by the defendant was essential, to put an end to and determine the obligatory force of the articles of agreement of October 1st, I860, and the liability of the defendant as maker of the five notes, in the second of the foregoing findings of fact mentioned.
    2d. That the plaintiff was entitled to a judgment in this action against the defendant -for the amount of the promissory note described in the complaint, together with interest thereon from its maturity, amounting together to the sum of one thousand two hundred and sixty-one dollars and seventy-eight cents, together with the plaintiff’s costs of this action.
    The referee further reported that he held proof of the counter claims set up in the second, third, fourth, fifth and sixth defenses pleaded in the defendant’s answer, inadmissible in this action, and excluded proof thereof.
    Judgment being entered in accordance with this report, the defendant appealed.

      J. Emott, for the defendant, appellant.

      G. W. Cotterell, for the plaintiff, respondent.
   By the Court, Robertson, Ch. J.

A distinction is recognized at law between the continuing obligation of a specialty and a liability under it for damages for a violation of stipulations contained in it. It requires an instrument of equal solemnity to dissolve the former, or even modify the terms of the instruments, unless as to time of performance of an act, (Clark v. Dales, 20 Barb. 42,) and then only on the principle of estoppel. (1 Roll. Abr. 453, pl. 5. Year Book, 2 Hen. VI. 37. Fleming v. Gilbert, 3 John. 528.) A contract agreed by parol to be accepted in discharge of. such obligation, or to modify the terms of such instrument under seal, even if performed ; or a chose -in action delivered and received in satisfaction, will not produce such effect. (Healy v. Spence, 8 Exch. 668. Smith v. Trowsdale, 5 El. and Bl. 685. Suydam v. Jones, 10 Wend. 80. Delacroix v. Bulkley, 13 id. 71. Allen v. Jaquish, 21 id. 628, overruling Dearborn v. Cross, 7 Cowen, 48. Eddy v. Graves, 23 id. 82. Mitchell v. Hawley, 4 Den. 414. The Mayor of Berwick, &c. v. Oswald, 1 El. & Bl. 295.) There is therefore nothing in the evidence before us .shewing a legal rescisión or modification of the original agreement of October, 1860, and á consequent failure of consideration of the note in suit.

Damages, however, for the breach of a covenant, may be satisfied by the delivery and acceptance of something else in satisfaction of them, or a new contract may he entered into and accepted as a substitute therefor. (Townsend v. Empire Stone-dressing Company, 6 Duer, 208. Delacroix v. Bulkley, ubi sup. Lattimore v. Harsen, 14 John. 330. Keeler v. Salisbury, 27 Barb. 485. 5 Coke, 117.) Even in a technical accord and satisfaction, its efficacy arises from the agreement contained in the former, and not from the performance thereof implied in the latter word. (1 Saund. Pl. and Ev. 23. Bac. Abr. Accord and S. 3 Steph. Con. 373. 1 Chit. Pl. 613. 2 id. 924, 1022, 1031, 1156.) And for that very reason, among others, the obligation of a specialty cannot be discharged by a parol executory accord, notwithstanding its terms are carried out. There can be no doubt, however, that the acceptance of a new agreement is satisfaction of a cause of action arising under a prior one, whether under seal or not, is a bar to any action therefor. Such new agreement may be either the assumption of new liabilities, a promise to pay a further sum, an undertaking of new duties or acts to be performed, an exchange of securities, or the surrender or apportionment of debts or property. (Addison on Contracts, 1099.) The reason assigned for which is that the party with whom the new contract is made has a remedy to enforce it by action. (Com. Dig. Accord, B. 4. Cartwright v. Coolie, 3 B. and Ad. 701. Evans v. Powis, 1 Welsb. H. and G. (1 Exch.) 607.) This is usually ranked as a species of accord and satisfaction, although, but for the fact that the original contract still remains obligatory, it would more nearly approach the novation of the civil law, (Instit. Lib. 3, Tit. 30, de Novatione, Cod. Lib. 8, Tit. 42, sect. 8, Dig. Lib. 46, Tit. 2, de Novationibus,) of which the substitution of a new debtor for an old, is the only branch recognized by our. law. The distinction between an accord and such a substituted agreement is pointed out in Tilton v. Alcott, (16 Barb. 598.) The liability of the party making an accord which he refuses to execute is recognized in Billings v. Vanderbeck, (23 Barb. 546.) In Potter v. Smith, (14 John. 444,) a delivery by the defendant to the plaintiff of certain property to be accepted by the latter in satisfaction of a certain part of the amount of a- judgment against the former, and half the costs included in it, and his agreement to release any errors in obtaining such judgment, in consideration of the relinquishment by the plaintiff of the other half of such costs, and a levy under two executions, was held to be good by way of accord and satisfaction. Mitchell v. Hawley, (4 Den. 414,) does not militate against this doctrine, because, in that case, the plaintiff merely agreed not to pursue one of the defendants if he would agree not to appeal from the judgment against them, where the remedy of such defendant (as on a covenant not to sue) would be on the agreement. The case of Keeler v. Salisbury, (27 Barb. 485,) which was subsequent, fully sustains the principle of the discharge of a cause of action by a new agreement The other before cited cases of Townsend v. Empire Stone Dressing Company, Delacroix v. Bulkley, and even Lattimore v. Harsen, (the point of which seems to be mistaken in Dearborn v. Cross, ubi sup.) are fully in point.

The same doctrine is more fully elaborated and distinctly stated in the English cases. In Gould v. Cheeseman, (2 B. and Ad. 328,) creditors who had accepted the covenants of their debtor, and his agreement to pay a trustee in satisfaction of debts due them, were precluded from maintaining an action against him for the original cause of action. An agreement by one party to an action to pay the costs of it, and- by. the other to pay a certain sum, and by both that all disputes should cease, it was held might be pleaded in bar of a further maintenance of the action. (James v. David, 5 T. R. 142. Crowther v. Farrer, 15 Q. B. 677. Cooper v. Parker, 14 C. B. 118.) An agreement between the parties to an action accepted by the plaintiff in full discharge of a prior agreement was, on demurrer to a plea setting up the same, held to be a substituted■ contract, and an answer to an action, or that for which it was substituted. (Taylor v. Hillary, 1 Cr. M. and R. 741.) The acceptance of an agreement to submit to arbitration certain matters in satisfaction of other claims was held to be a good bar to an action for the latter. (Williams v. The London Com. Exch. Co. 10 Exch. 569.) In an action on an award, a plea of a substituted agreement accepted in place of its performance,- was held good, (Smith v. Trowsdale, ubi sup.) as the action was not on the submission under seal.

But in all the cases just referred to, as well as others, great stress is laid on the existence of some agreement to accept the new undertaking in place of the performance of the old, and the distinction is preserved between accepting the acts agreed to be done, or the things to be delivered, in satisfaction, and accepting the mere agreement to do or deliver them in the same way. Thus, a plea of an agreement entered into by the parties to an action whereby the defendant promised to do a certain thing, and of the settlement, satisfaction, discharge and termination thereby of the cause of action in suit, was held bad for want of averring an acceptance by the plaintiff of such agreement, in satisfaction. (Hall v. Flocton, 20 L. J. 208.) In other words, there must be an accord.

It is necessary, therefore, in all cases to allege and prove, either by the terms of the new contract or evidence aliunde, the existence of an agreement to accept such new contract itself, and not the mere performance of its terms, in satisfaction of'the prior contract. The referee has found in this case, as facts, not only the absence of any understanding between the parties when making and accepting the written proposition of J une, 1861, that such making and acceptance, and the defendant’s assumption thereby to perform what was therein required of him, should be a substitute for, or in extinguishment of, the original articles of agreement and the covenants therein contained, or of the defendant’s promises as maker of the five notes therein mentioned, including that in suit; but also an actual understanding between the parties that only the defendant’s performance of the matters required to be done by him in such written proposal, should determine and put an end to such articles of agreement and the defendant’s liability as maker of such notes. The first of such facts was evidently founded on the entire absence of any extrinsic evidence to show that there was any understanding dehors the written proposition to render its making and acceptance a satisfaction per se, both of the prior agreement and the notes therein mentioned. The second was evidently founded on an interpretation of the terms of the proposition itself, and may, therefore, properly be said to be a question more of law than of fact.

Such proposition opens with a proposal to do three things, on certain terms therein specified : 1. To release the defendant from all obligations in the original contract of October, 1860. 2. To return him four of the notes mentioned therein, including that in suit! 3. To release him from all obligations in selling plumbago. Such terms, among other things, required the defendant to discharge a certain note of his, on which about $540 was due ; to pay a small sum for interest, ($21;) and deliver over certain notes of his own for certain amounts ; as well as the notes of two other persons, (Seabury and Col-burn.) It closed by stating : “ I agree to return the said four notes, whey, you have paid the note for $540 and $21 to me, and have passed over to me said notes of Seabury, Oolburn and yours, or to have them ready for delivery on a certain day, which shall be prior to July 10f/t ensuing. On these terms I will give you a receipt in full for all demands,” (except a certain specified note,) “ cancel the contract, and take also a receipt in full for all demands.” The fixing of the time for the relinquishment of the notes in question by the first part of such clause, was evidently separated from the release of the defendant from his obligations under the original contract, and such surrender was made to depend upon paying the sums specified, and delivering the note referred to by the time so fixed. By the second part of such clause only a promise was made to discharge the defendant entirely, upon the terms therein recited, including such payment and delivery. There can be no doubt that this was, as stated by the learned referee in his opinion, “ clearly a mere accord, where performance, and only that, was to be satisfaction, or work an extinguishment of prior liabilities.” This is still further evidenced by the requisition in such proposition that the defendant should pay the sum of $21 for interest on “the settlement of the papers,” and that he should transfer notes, not then in existence, of third persons.

Such terms, however, never were complied with, the Seabury and Colburn notes never having been delivered or tendered, or the $540 note paid; so that the agreement* as originally adopted, was never carried out. It is claimed* however, that the time of performance was not of the essence of the contract, and that the other parties have so conducted themselves in reference thereto as to make it immaterial, and that part performance has been accepted. The defense of an accord and satisfaction was entirely legal, and not equitable. There was no equity extending the time for performance beyond that fixed in such original agreement, until the new arrangement was afterwards made, to accept the defendant’s note in place of Seabury’s, which extended it to the time of such acceptance, and disposed of that act of part performance. The correspondence of the 20th of September, possibly extended the time of payment of cash required by the original terms of settlement to the maturity of the defendant's note then given. The acceptance of the assignment of the Dixon & Co. account would, if the note had been delivered, have been a compliance with that condition of the settlement. But the defendant's refusal to deliver such note, unconditionally, and the consequent notification to him by the other parties of the termination of such negotiation for a settlement took away all right to further delay. Even if it had not, and the time for obtaining the Col-burn note was prolonged until that time, that note never was offered, nor was the delay accounted for. The original arrangement was, therefore, never carried out, nor any modification, without which the defendant remained liable on his notes.

The powder whose delivery formed part of the arrangement was, at the very time of making it, on its way to the plaintiff and the Butlers, and was their property under the original agreement. For the price paid for it, the defendant was secured under the original agreement.

If there be any collision between the testimony of the defendant and Mr. Butler as to the occurrences and dealings between them, I think there is good ground for giving greater credence to the latter’s statements in consequence of the want of good faith in the former in withholding the Seabury note, and also the note of Dixon & Oo. after having assigned it. The second, third, fourth, fifth and sixth defenses in the answer, if counter-claims, are not admissible against the plaintiff, (Code, § 150,) and are not the subject of a legal set-off, (Cummings v. Morris, 3 Bosw. 560; S. C. 25 N. Y. Rep. 634,) and were properly excluded.

The judgment should be affirmed, with costs.


author: By the Court, McCunn, J.

text:
    William Hicenbothem, plaintiff and respondent, vs. Abraham Lowenbein, defendant and appellant.
    An officer executing a warrant of dispossession is not bound to delay its execution on account’of a storm, even though the goods removed are liable to great injury by exposure to it,
    (Before Robertson, Ch. J. and Monell and McCunn, JJ.)
    Heard November 14, 1864;
    decided December 31, 1864.
    Appeal from a judgment entered on the verdict of a jury, and from an order made at special term denying a motion for a new trial.
    The action was brought to recover damages against the defendant for having, by himself, servants, agents and employees, “forcibly, willfully, wrongfully and unlawfully” taken personal property from the premises occupied by the plaintiff; and also for doing the same “ carelessly,” negligently, willfully and maliciously. Also for the conversion of a certain workshop, the same being personal property.
    The answer avers the issuing of a warrant, and the proceedings thereunder, as a justification of the removal of the chattel property, and denies the allegations in the complaint, “ except that prior to, and at the time referred to in the complaint, the plaintiff was in possession of the premises in said complaint mentioned, wherein and whereupon he had- certain personal property,” &o.
    The material facts appearing on the trial are stated in the-opinion of the court.
    The jury found a verdict in favor of the plaintiff for $374.50.

      Henry Morrison, for the appellant.

      Chauncey Shaffer, for the respondent.
   By the Court, McCunn, J.

This is an action for injury to personal property, and also for the conversion of property. Damages were laid by the plaintiff at $5000.

Tt appears from the pleadings and by the evidence in the case, that the plaintiff, as tenant, occupied certain premises known as 241 Bowery, in the city of New York, and that on the 1st of May, 1856, he held over after the expiration of his lease. The defendant, the incoming tenant, under a new lease and by virtue of the statute giving him the right, took legal steps to evict the plaintiff, and procured the proper warrant for that purpose, and under such warrant the plaintiff was removed from the premises.

The plaintiff claimed and endeavored to give evidence at the trial that, in the removal of his goods under the warrant, the defendant rendered himself liable for injury to the plaintiff’s property, either through negligence or 'malice. The plaintiff further claimed that, in addition to his loss for such injury to his goods, the defendant prevented him from removing and taking away a temporary workshop, which he, the plaintiff, had erected on the premises at his own expense, worth at least $300, thereby converting the same to his own use.

The defendant set up in his answer and endeavored to prove on the trial that the shop belonged to the realty, and that consequently the plaintiff had no right to remove the same, and that in removing the goods from the premises under the warrant to dispossess, he, the defendant, acted under color of law, and that the property was not injured by such removal.

As to the question of the shop belonging to the realty, very serious doubts arise in my mind in examining that question ; but I am relieved from this responsibility by reason of a portion of the charge of the learned justice who presided at the trial, in which I think he was in error; this being so, I .pass this question and other questions arising in the case, and proceed at once to that portion of the charge in which I think there is a clear mistake made as to the law.

It would seem to be conceded by both parties, because I find no objection taken at the trial, that the proceeding had before the justice and the warrant issued thereunder to dispossess the plaintiff from the premises, was regular in all respects and was in strict accordance with the statute, and that the plaintiff in this suit was liable to be dispossessed by virtue of said warrant against him. This being so, did the defendant, acting at the request of the constable, render himself liable in assisting to remove the goods in a careful and proper manner ? Clearly not. The warrant protected all, unless the defendant acted maliciously and willfully, and of this there is no evidence.

The learned justice made use of the following language in a portion of his charge : “ One of the witnesses, the plaintiff, I believe, testifies that the day on which the property was removed was a rainy, bad day ; that it rained all day, and the property was put out in the storm, and necessarily suffered injury in consequence of that,

If that is so—if the property was removed at an improper time, so that for that reason stich removal would cause great injury to the owner, it was an Jplawful act, It was contrary to the great rule of law, which commands us to do unto others as we would be done by. The constable is commanded by the warrant, to be sure, to immediately remove certain property from the premises ; but it is common sense, as well as good law, that he is not bound to remove property which would be destroyed by a storm in the midst of a tempest. It is not doing as we would be done by ; it is not right, and therefore not justified by law.”

I have no doubt that the use of this humane language by the justice had a powerful effect upon the jury, and to a very great degree influenced their minds in arriving at a conclusion as to what their verdict should be, and although advice to Lowenbein, the defendant^ to desist from the execution of the warrant on that rainy day, and wait until the clouds would pass away and sunshine again break forth, would have been most kindly intended, yet I am constrained not to recognize this theory as sound law.

To give encouragement to such a principle would, in the end, embarrass the entire proceedings of our courts, and tend in a very great measure to defeat the aim and object of the law.

The law does not, in this sense, recognise the state of the weather and it is for these reasons, without more fully entering into the case, I find myself compelled to adopt the opinion that the judgment in this case should be reversed and a new trial ordered, with costs to abide the event.

New trial granted.