author: By the Court. Woodruff, J.

text:
    Eno, Respondent, v. Del Vecchio & Snyder, Appellants.
    Where the owner of two adjoining lots of ground erects a building upon each with a partition-wall extending partly on each lot, used as a support to each building, and necessary to such support, and thereafter he, or his representatives, conveys the houses and lots separately to different persons, each purchaser acquires an easement, for the support of the house conveyed to him, in so much of the party-wall as stands upon the other lot.
    Neither purchaser can lawfully remove or interfere with such party-wall, without the consent of the other, so as to injure the other’s building. If he do so, though for the purpose of making improvements within the limits of his own lot, he is liable for such injury.
    No degree of care or diligence in.the performance of the work will relieve him from liability, if injury to the other in fact is caused by making such improvements. The party makes them at his peril.
    Nor can he protect himself by making a contract for the work, with a third person exercising an independent employment. The act done is a trespass, and being done by the express direction of the party, both he and his contractor are liable for the consequences.
    If the injured building be in the possession of a tenant for a term of years, the owner can only recover for the injury to the building itself, and not for the interruption or interference with the possession or use and enjoyment thereof,
    For such injury to the building the owner may recover, notwithstanding his lease to his tenant contains a covenant binding the tenant to make all alterations and repairs during the term,
    (Before Hoffman, Slosson and Woodruff, JJ.)
    Heard, April;
    decided, June, 1856.
    Appeal from a judgment in favor of the plaintiff.
    It was before the court upon a case containing the evidence and exceptions taken on the trial. The action was brought by the plaintiff, as owner in fee of the dwelling-house known as 496 Broadway, in the city of New York, to recover damages for the injuries alleged to have been done to his dwelling-house, by the wrongful disturbance and removal of an ancient party-wall, thereby depriving the house of the plaintiff of the support to which it was entitled. The defendants answered separately, and in their answers denied all the material allegations of the complaint.
    The cause was tried before Boswobth, J., and a jury, in March, 1855, and after the cause had been opened on the part of the plaintiff, the counsel for the defendant moved the court for judgment for the defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court denied the motion, and the counsel for the defendants duly excepted.
    The counsel for the plaintiff then proved that the premises 494, as well as 496, were portions of a row of similar buildings which had been erected previous to the year 1820, with partition-walls in common as at present, and then gave evidence tending to show that the defendants had lowered the floor of the first story of the premises 494 Broadway; that for that purpose the foundation of the division-wall between Hos. 494 and 496, on the north side of No. 494, had been cut down about eighteen inches; that the cellar of Ho. 494 had been dug down to about the same depth, and the division:wall underpinned; that in consequence thereof, the division-wall had settled down some two or three inches, carrying down the floors of 496, and that the front and rear brick walls of that building were cracked, and that the damage to Ho, 496 was from six hundred to fifteen hundred dollars. The plaintiff’s witnesses testified that a common and proper manner of underpinning a wall, under which excavations to a small depth are made, is to dig out the earth in sections of two or three feet in length, and to underpin the wall in those sections before digging any more.
    On the cross-examination of George Peckham, a witness on the part of the plaintiff, he testified that the premises, Ho. 496 Broadway, were leased by the plaintiff for a term of years by a written lease, to which he was subscribing witness. The counsel for the defendants called upon the counsel for the plaintiff to produce such lease. The counsel for the plaintiff produced the same, and the counsel for the defendants read it in evidence in the words and figures following, to wit:
    “ This agreement, made the eighth day of February, in the year 1851, between Amos R. Eno, merchant, of the first part, and Albert Losee, of the second part:

      “ Witpesseth, that the said party of the first part has agreed to let, and hereby does let, and the said party of the second part has agreed to take, and does hereby take, the house known as number 496 Broadway, in the city of New York, for the term of five years, to commence on the first day of May, 1851, and to end on the first day of May, 1856, and the said party of the second part hereby covenants and agrees to pay unto the said party of the first part, the yearly rent or sum of fifteen hundred dollars, payable quarterly, to wit, on the first days of August, November, February, and May, in each year. Also to make all alterations and repairs at his cost and expense. And also shall pay the regular annual charge or rent, which is or may be charged, assessed, or imposed, according to law, upon the said house or tenement for Croton water, and to quit and surrender the premises at the expiration of the term in as good state and condition as the reasonable use and wear thereof will permit, damages by the elements excepted. And the said party of the second part further covenants that he will not assign, let, or underlet, the whole or any part of the said premises, without the written consent of the said party of the first part, under the penalty of forfeiture and damages, and that he will not occupy the said premises, nor permit the same to be occupied for any business deemed extra hazardous, without the like consent under the like penalty, and the said party of the second part further covenants, that he will permit the said party of the first part, or his agents, to show tbe premises to persons wishing to hire or purchase, and on and after tbe first day of February next preceding tbe expiration of the term, will permit the usual notice of 1 To Let,’ or ‘For Sale,’ to be placed upon the walls or doors of said premises thereon, without hindrance or molestation; and also if the said premises, or any part thereof, shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor, and to relet the said premises, as the agent of the said party of the second part, and to receive the rent thereof, applying the same first to the payment of such expense as he may be put to in re-entering, and then to the payment of the rent due by these presents, and the balance (if any) to be paid over to the said party of the second part. .
    “ And the said party of the second part hereby further cove* nants, that if any default be made in the payment of the said rent, or any par); thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring and relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine. And the said party of the first part shall, and may re-enter the said premises and remove all persons therefrom. And the party of the second part hereby expressly waives the service of any notice in writing of intention to re-enter, as provided for in the third section of an Act entitled 1 An Act to abolish distress for rent, and for other purposes, passed May 13, 1846.’
    “In witness whereof, the parties to these presents, have hereunto set their hands and seals, the day and year first above written.
    “Albert Loses. [Seal.]
    “ Sealed and delivered in ) the presence of j
    “George Peckham.
    “ In consideration of the letting of the premises above mentioned, to the above-named , I hereby covenant and agree, to and with the party of the first part, above named, and his legal representatives, that if default shall at any time be made by the said in the payment of the rent, and performance of the covenants above contained, on his part to be paid and performed, that I will well and truly pay the said rent, or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part.
    “ Witness my hand and seal, the eighth day of February, in the year of our Lord, one thousand eight hundred and fifty-one.
    “Jacob F. Oaklet. _ [Seal.]
    “Witness—George Peckham.”
    The said George Peckham further testified, that the plaintiff had received under protest, from the tenant, all the rents payable under such lease, without any deduction for any injuries to the premises, and that the plaintiff had paid nothing for any repairs of any in-j ury complained of in the complaint in this action.
    The counsel for the plaintiff then read in evidence a deed, bearing date the 19th day of January, 1844, made by John L. Lawrence, administrator of the goods, etc., of Isaac Lawrence, deceased, to the plaintiff, and one John J. Phelps; and also a deed, bearing date the 18th day of June, 1846, made by the said John J. Phelps to the plaintiff, in and by which deed the premises now known as Ho. 496 Broadway are conveyed by the following description:
    “ All that certain lot, piece, or parcel of land, situate, lying, and being in the fourteenth ward in the city of Hew York, bounded and described as follows: beginning at a point on the easterly side of Broadway, eighty-six feet northerly from the north-easterly corner of Broadway and Broome-street, running thence northerly along Broadway aforesaid twenty-three feet, thence easterly one hundred feet, thence southerly, parallel to Broadway, twenty-three feet, thence westerly one hundred feet to Broadway aforesaid; the said lot being now known and distinguished by the street number four hundred and ninety-six, (496,) Broadway, being the same premises conveyed to the said Amos R. Eno and John J. Phelps, parties hereto, by John L. Lawrence, administrator, etc., by indenture bearing date the nineteenth day of January, 1844, and recorded in the office of register of the city and county of Hew York, in liber 446 of Conveyances, p. 72.”
    The counsel for the defendants admitted that the said John L. Lawrence had lawful authority to make said deed.
    The counsel for the plaintiff offered in evidence a deed, bearing date the 20th day of Hovember, 1839, purporting to have been made by Isaac Lawrence, and Cornelia B., his wife, to Julia B. L. Wells, for the premises now known as 494 Broadway, in which deed the said premises are described in the words and figures following, to wit:
    All that certain house and lot of land, lying and being in the fourteenth ward of the city of Hew York, on the easterly side of Broadway, now known and distinguished as Ho. 494, in said street, bounded as follows, to wit: westerly, in front, on Broadway ; easterly, in the rear, by land now or formerly of John Jacob Astor; northerly, by the house and lot of the said John Jacob Astor, containing in breadth, in front and rear, twenty-three feet, and in depth, on each side, one hundred feet, be the same more or less. The northerly wall of said house, hereby conveyed, being a party-wall, and the northerly side of said lot, hereby conveyed, being in a line through the centre of said wall.
    The counsel for the defendants objected to the reception of said deed in evidence, on the ground that the plaintiff has complained as for injuries to an ancient wall, and is not entitled to give evidence by deed of a reservation to his grantor of an easement in the wall.
    The court overruled the objection, and received the deed in evidence, to which the counsel for defendants duly excepted.
    The counsel for the plaintiff then proved, that the defendant Del Vecchio is the lessee for a term of years of the premises at 494 Broadway, and that the defendant Snyder had made the alterations on those premises for the defendant Del Vecchio.
    The counsel for the plaintiff rested his case, and the counsel for the defendant Snyder moved for a dismissal of the complaint, as to said'defendant, on the grounds:
    1st. There is no evidence to connect Snyder with the injury complained of. 2d. The plaintiff must elect whether he will go against Del Vecchio or Snyder. He can not sue both principal and agent in one suit. 3d. There is no proof showing that this would be an injury to the reversion—
    Which motion was denied by the court, and the counsel for the defendant Snyder duly excepted.
    The counsel for the defendant Del Vecchio moved for a dismissal of the complaint, as to said defendant, on the grounds:
    1st. There is no evidence showing that the plaintiff had an easement in that part of the wall which stood on the defendant’s lot. 2d. That the plaintiff, by his complaint, claims damages to both the possession and the freehold; the proof shows an outstanding lease for years, and the plaintiff is not entitled to recover for injuries to the possession, and can only recover for injuries to the freehold by complaining as reversioner. 3d. There is no evi-dence that Del Vecchio did the work which occasioned the alleged injury, or employed the men who did it. 4th. This action can not be maintained jointly against the principal and agent. 5th. There is no evidence to show that the alterations on the defendant Del Yecchio’s premises were done in a negligent or unskillful manner; but, on the contrary, the evidence is, that it appeared to have been done carefully. The complaint is not sustained by the evidence, and should be dismissed. 6th. The action is improperly brought. It should have been an action of trespass, and not on the case.
    Which motion was denied by the court, and the counsel for the defendant Del Yecchio duly excepted.
    The counsel for the defendants then gave evidence tending to show that the alterations in the premises No. 494 Broadway were made in a prudent and careful manner, that the undermining of the division wall was done in sections of two or three feet at a time, and that the division wall, and the front and rear walls of the plaintiff’s house, were cracked at the time of the alterations in No. 494 Broadway.
    The defendants also gave evidence tending to prove that the front of the building 496 Broadway had been so altered and repaired, as to make the same as perfect as before the alleged injury.
    The counsel for the defendant Del Yecchio called as a witness upon his behalf the defendant John Snyder, who testified that he was employed by the defendant Del Yecchio under a contract to make the alterations on No. 494 Broadway, that he did malee those alterations pursuant to such contract, furnished the materials therefor, and employed and paid the men who did the work; that before he commenced work he called on the tenant in possession of 496 Broadway.
    The defendant Del Yecchio offered to prove, that before the work on 494 Broadway was commenced the witness called on the tenant in possession of 496, who was the assignee of the lease of the plaintiff to Losee, and notified him of the intention to make the alterations on No. 494, and that he assented thereto. The counsel for the plaintiff objected, the court sustained the objection, and the counsel for the defendant Del Yecchio duly excepted.
    The counsel for the defendant Snyder offered to prove the same facts by the defendant Del Yecchio, the counsel for the plaintiff objected, the court sustained the objection, and the counsel for the defendant Snyder -duly excepted. When the evidence was closed, the counsel for the defendant Del Yecchio moved the court to direct the jury to find a verdict in his favor, on the ground that it appeared that the work was done by the employees of the defendant Snyder, that the relationship of master and servant did not exist between the defendant Del Vecchio and the men who did the work, and he is not responsible for their negligence, which motion was denied, and the counsel for Del Vecchio duly excepted.
    The counsel for the defendant Del Vecchio requested the court to charge the jury—
    1st. That if Snyder did the work under a contract with Del Vecchio, and the work was done by Snyder’s employees, Del Vecchio is not liable for their negligence, and the jury must find for him. 2d. That Del Vecchio had a right to cut down the wall, dig out the cellar, and underpin the wall on his own premises if he chose to do so, and would be responsible only for the negligence- of his own immediate employees. 3d. That the wall in question is not, in view of law, a party-wall. 4th. That the defendants were not bound to give the plaintiff notice of their intention- to cut down and underpin the wall.
    The court refused so to charge, and the counsel for the defendant Del Vecchio duly excepted.
    The counsel for the defendant Snyder requested the court to charge the jury—
    1st. That if they should find for the plaintiff, he is only entitled to such damages as the plaintiff has sustained as reversioner only, after the expiration of the term of the lessee, and the plaintiff has given no evidence of such damages. 2d. That there must be some act as tortious, in which both parties concurred, before they can find for the plaintiff in this joint action. 3d. That as the plaintiff has a covenant to repair by the tenant, with security, the plaintiff is not shown to have sustained any injury in consequence of any of the acts complained of. 4th. That the- mason was under no obligation to give notice of the doing of the work; that if there was any such obligation, it rested with Del Vecchio, and Snyder can not be held responsible for the omission.
    The court refused so to charge, and the counsel for the defendant Snyder duly excepted.
    The court charged the jury that where an owner conveys land, declaring a wall to be a party-wall, each subsequent- owner of the land so conveyed, and of the adjoining land, has a perfect right to have the wall continued as it was, without any alterations, except by his consent, and that if either of such owners should make any alterations to such wall upon his own side thereof, without the consent of the other, he would be liable to such other owner for any damages sustained by reason of such alterations.
    To which charge the counsel for the defendants duly excepted.
    The court also charged, that if, by reason of the alterations to the party-wall, the plaintiff has sustained damage, both defendants are liable for the whole damage.
    To which charge the counsel for the defendants duly excepted.

      G. W. Stevens, for the defendant Del Vecchio,
    now moved for the reversal of the judgment, and a new trial, and insisted upon the validity of all the exceptions taken on the trial. He cited, among other authorities, the following: (4 Comstock, 196; 1 Seld. 48; 1 Maule & Selw. 234 ;5 Cush. 592 ; 4 Exch. Rep. 24; 1 Eng. Law and Equity Rep. 477; 6 Bing. 1; 9 Barn. & Cres., 725.)

      H. Brewster, for defendant Snyder.

      G. A. Nichols, for plaintiff,
    argued at large, that none of the exceptions taken on the trial could be sustained, and insisted, that the charge of the Judge was throughout correct, and in accordance with the rule of law; that a party who contemplates alterations upon his own premises, endangering those adjoining, must give reasonable notice, and is chargeable with all the consequences of a neglect to give such notice; he cited 4 Paige, 169; 9 Barn. & Cres. 725; 1 Cromp. & Jarvis, 20. He also insisted that the plaintiff had an easement in the use of the wall in question by prescription and by grant. He cited 12 Mass. 157, and Gale and Wansly's case, 9 Barn. & Cres. 148 to 161.
   By the Court. Woodruff, J.

When this case was before the court in October, 1854, nearly all of the questions raised by the present appeal were presented to the consideration of the court. We regard the- opinion then given as so far conclusive upon those questions, that it is not proper to open them here for discussion. That opinion must therefore be taken as the opinion of the court in relation to all matters embraced therein, or which are impliedly covered thereby.

It was then decided that, in any view of the rights and liabilities of the parties, the plaintiff was entitled to notice of the defendants’ design to take down the wall in question ; but that if it was found that the wall in question was a party-wall, then that the question of notice or no notice to the plaintiff was immaterial, because in that case the defendant had no right to interfere with the wall at all without the plaintiff’s consent, unless he could do so without injury to the plaintiff’s building.

Under what circumstances the wall is to be deemed a party-wall, is stated, so far as is material to the present case, in the following propositions, with the conclusions therefrom :—

“ 1st. If the owner of two adjoining lots erects buildings upon them with a wall partly on each, to be used as a support to both buildings, and which is necessary to furnish such support, and which is used for that purpose from the time of its erection, a conveyance of either house and lot, with its appurtenances, grants an easement, for the support of the house so conveyed, in so much of the wall as stands on the other lot.

“2d. After such a grant and a continued use of such party-wall, to support both buildings for more than twenty years, neither can remove the wall, nor so deal with it as to render it an insufficient support for the other’s building, without his consent. If he does he is liable to the other for the injury.

“ 3d. If either wishes to improve his own premises before the party-wall has become ruinous, or incapable of further answering the purposes for which it was erected, he may underpin the foundation, sink it deeper, and increase, within the limits of his own lot, the thickness, length, or height of the party-wall, if he can do so without injury to the building on the adjoining lot; and to avoid such injury he may shore up and support the original party-wall a reasonable time to excavate and place a new underpinning beneath it.

“ 4th. But he cannot interfere with it in any manner unless he can do so without injury to the adjoining building, or without the consent of the owner of such building.”

In regard to the rule of damages, in case the plaintiff should be under these propositions entitled to recover, the rule is stated to be that “ he will be entitled to recover such sum as will put him in the state in which he was before the injuryin other words, he is entitled to be “indemnified to the full extent of the injury occasioned.”

Both upon the former trial and upon the present, it appeared that the premises owned by the plaintiff were under lease to the tenant in possession thereof, which lease would not expire until the first day of May, 1856, and that, in addition to the covenant by the tenant for the payment of rent, there was a covenant “ also to make all alterations and repairs at his own cost and expense.”

The evidence upon the new trial ordered by the General Term showed, that the two houses referred to were “ portions of a row of buildings erected previous to 1820, with partition-walls as at present.” Also that Isaac Lawrence, under whom the defendant Del Vecchio holds, conveyed the lot held by the said defendant in 1889, describing the wall in question as a party-wall, and that the administrator of the said Isaac Lawrence, (under authority for that purpose admitted by the defendants,)conveyed the plaintiff’s lot to him. Although the deeds were objected to, it is on this appeal conceded that their admissibility was in substance decided by the General Term by the opinion above referred to.

The evidence was that the defendant Del Vecchio, being lessee of one of the buildings, employed Snyder, his co-defendant, to make alterations, digging down the foundations and lowering the floor, making the cellar also deeper, and in consequence of his doing it, the wall in question settled, and the front and rear walls of the plaintiff’s house were cracked, and that the damage to his building was from $600 to $1,500.

On the trial the defendants offered to prove, each by the other of them, notice to the tenant in possession of the plaintiff’s house, of an intent to make the alterations, and that he assented thereto. The plaintiff’s objection to this evidence was sustained, and we think properly sustained.

First, because this defence, if it was a defence, was not peculiar to either defendant; if good as to either, it was so as to both. But secondly, and quite conclusively, because the assent of the-tenant could only affect his right to complain of what was done, and could not prejudice the plaintiff. The tenant had no authority, express or implied, for any such, purpose. He had no right 'to commit waste himself and could not authorize another to do so.

The charge of the Judge appears to us to be in entire conformity to the decision of the General Term, in relation to what constituted a party-wall, and the rights and liabilities resulting from the common interest therein.

It is suggested that the defendant Del Vecchio is not responsible for the acts of Snyder his employee. The cases relating to the liability of a person for the negligence of another, who stands to him in the relation of an independent contractor, and not of servant, have we think no application to the present case. Here one defendant employs and directs the other defendant to commit a trespass. Both are liable for the consequences jointly and severally. The question of negligence was wholly immaterial, or at least it was wholly unnecessary that the plaintiff should prove any negligence. The trespass was committed at the peril of being responsible for all the injury sustained by the plaintiff.

The only other question which it is necessary to notice is, whether the rule of damages was correctly stated to the jury.

The views of the court at General Term on that point are above stated. The charge to the jury was as follows: “That, as the plaintiff had leased the premises before the injury complained of, for a term of years which had not yet expired, and was not in possession of the premises, he could not recover for any interruption in or interference with the' use of the premises, nor because the use and enjoyment of them had been rendered less valuable to the lessee or his tenants.” This is not-the subject of exception, it is within the conceded rule that the plaintiff cannot recover for an injury to the possession merely.

The charge further proceeded, “ that he could only recover for damages to the structure itself.

“ That the jury would inquire what it would cost to repair the injuries done to the building itself and restore it substantially to the condition it was in before it was injured by the acts complained of: that amount, and no more, the plaintiff was entitled to recover.”

To this last paragraph the defendant’s counsel excepted.

They urge that the plaintiff in his complaint does not describe himself as reversioner, and, therefore, cannot under this complaint recover at all. This point was not only sufficiently disposed of on the former argument, but it appears to us to be without foundation. The plaintiff complains that the defendants’ acts injured his house, damaged its walls, etc., etc., and although he avers that he was disturbed in the use and enjoyment thereof, the other averments are sufficient, though the latter is not proved. If it were deemed necessary to insert the prior condition of the plaintiff’s title in this respect, we should not hesitate to direct an amendment conforming the complaint to the fact proved.

No other objection to this part of the charge is stated, except that because the tenant had covenanted to make all alterations and repairs, therefore the plaintiff cannot proceed against the wrongdoers. We know of no such rule, and no authority is cited in support of the proposition. There can be but one satisfaction for the same wrong, and to that satisfaction the plaintiff is at all events entitled. It does not lie with the wrong-doer to say, “ I will not make compensation to the owner, because he has it in his power to seek redress against another person.”

If it were conceded that the tenant was, under the covenant above referred to, bound to repair damages of this description, caused by a wrong-doer, and that he might, therefore, have had an action for this same injury, the case would not be widely different from the very common examples in which one who has a special property in a chattel, as bailee, may recover against a wrong-doer for an injury done thereto, and yet no one supposes that the owner himself may not maintain the action. It is enough that there can be but one satisfaction.

It has not been claimed that the measure of damages, i. e., the actual cost of repairing the wall, was too enlarged a measure, and probably, on observing that the evidence given is stated in the case to have “ proved ” that the damage was from $600 to $1500, and that the jury found for the plaintiff only $350, the defendants have no occasion to complain of the rule, in fact, adopted by the jury in this respect.

The judgment must be affirmed with costs.

       Reported 4 Duer, 53.


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    Chittenden v. The Empire Stone-Dressing Co.
    Where, upon a trial, the Judge directed a verdict to be taken, subject to the opinion of the court at General Term, the judgment there to be entered, and the facts are admitted or fully proven, and nothing for the jury to pass upon, the judgment may be rendered for a dismissal of the complaint, as well as, in a proper case, for the plaintiff.
    Such was the former practice, and the Code has not changed it. The case of Aster v. TJ Amoreux, (4 Selden, T69,) and of Marquart v. Marquart, (2Iternan, 338,) are not repugnant to it. They preclude the General Term from deducing facts from testimony, and on these deductions giving a judgment. But the principle of sending a case to the General Term, under the 265th section is to procure the judgment of law upon established facts—facts admitted or duly proved.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    Andrews, for plaintiff.

      Sandford, for defendants.
    The facts are stated in the opinion.
   Hoffman, J.

This case arises on a verdict of a jury, taken subject to the opinion of the court at General Term, judgment there to be entered, with liberty to turn the case into a bill of exceptions.

The action is brought upon a promissory note made by the defendants, dated the 9th of May, 1854, in favor of E. E. Jarman, for the sum of $1,000. It was endorsed by Jarman, and then by Charles T. Shelton. The note was made for the accommodation of the defendants, was procured to be discounted for their benefit by Shelton, and he credited the amount to such defendants on his books in May, 1854.

OneU. A. Oondrey, of Hew Haven, Connecticut, discounted the note. The note got into the hands of one Losen Oondrey, who sued Shelton upon it in Connecticut, and obtained a judgment, upon which his property was set off and stocks sold, so that the whole amount was satisfied, and the sum of eighteen cents returned to the judgment-debtor, Shelton.

After this satisfaction, the attorney of Losen Condrey delivered the note, and, as he states, transferred all the right of s^id Condrey in it to the present plaintiff, receiving from, him $137, which he claimed as a balance still due upon it, notwithstanding the satisfaction of the execution. He deposes that Shelton gave his assent to this transfer; that he had told Shelton what he had done, who replied that it was all right. Shelton states that he had no knowledge when or by whom the note was transferred to the plaintiff.

It is manifest, upon these facts, that if Shelton could not sustain an action against the defendants the plaintiff cannot. Shelton, as indorser, had paid the note in full; Condrey, the holder, had no interest to transfer to the plaintiff. The attorney, demanding a right to it, for $137 delivers it to the plaintiff. Suppose the statement true, that Shelton assented to this; in other words, that he had got the note and delivered it, for $137, to the plaintiff. He would take it, subject to every right, legal or equitable, between Shelton and the defendants, and on the case as now presented, Shelton admits himself to be the debtor of the defendants for the whole avails of the note which he procured to be discounted.

It is manifest, we think, that there was something in the transaction not in evidence; birt it is equally plain, that there is no possible ground to hold the defendants liable in this action.

The next question is, what determination can we make of the case?

After the plaintiff had rested, the defendants’ counsel moved for a nonsuit, on a ground not necessary to state, which was denied.

The defendants having then gone into evidence and rested, moved for a dismissal, on the ground that the plaintiff had not proved his title to the note; that it appeared the same belonged to Shelton.

The Judge ruled that the plaintiff should show further evidence of his title. He then called on the attorney of the plaintiff in the suit in Connecticut, who deposed as before noticed.

All the evidence being closed, the Judge ordered a verdict to be entered for the plaintiff, subject to the opinion of the court at General Term, on a case to be made, with liberty to turn the case into a bill of exceptions.

The case, then, is this: there was nothing at the trial to submit to the consideration of the jury; no question of fact whatever. The Judge, in directing a verdict subject to the opinion of the court upon a case, directs substantially that the questions of law arising upon the facts, proved or admitted, be submitted to the court at General Term.

It comes, then, precisely within the last clause of the 265th section of the Code, that where upon a trial the case presents only questions of law, the Judge may direct a verdict subject to the opinion of the court at a General Term, “and in that case the application for judgment must be made at the General Term.”

Does not this mean an application for judgment of dismissal by the defendants, as much as an application for judgment according to the verdict'for the plaintiff?

By the former practice, upon a case made under a direction at the circuit, for a verdict subject to the opinion of the court, a judgment for the defendant could be given, and the practice was settled that the postea ought to be stayed in the hands of the clerk at the circuit until the decision of the question, and the verdict and judgment were then entered for the plaintiff or defendant as the case might happen. (Jackson v. Fitzsimmons, 6 Wendell, 546.)

In Astor v. L'Amoreux, (4 Sandf. Sup. Ct. Rep. 537,) the cause had been tried without a jury, and judgment (pro forma) entered, in order to have the case presented to the General Term. This was under a previous order granting a new trial. The court considered that it possessed the same power as upon an appeal to the Court of Appeals, and under the interpretation of the word “modify,” in section 330, could give such a judgment as the inferior court ought to have rendered, and thereupon entered judgment for the defendant.

Upon appeal (4 Selden, 109) the court reversed this judgment, stating that there was error in ordering final judgment upon a case made at the trial. The Superior Court was only authorized to grant a new trial.

Upon referring to the report in 4th Sandford, we find that the General Term passed distinctly upon the evidence, as establishing certain material facts which it was clear a new trial could not vary. This case is not an authority decisive of the present question.

In Marquart v. Marquart, (2 Kernan Rep. 338) the testimony had been taken by consent before a referee, and the case tried without a. jury, on pleadings and depositions. The Judge at Special Term directed a judgment, which, on appeal, was reversed, aud the complaint dismissed Avith costs.

On appeal Justice Johnson said: When the facts a,re ascertained upon the trial, either upon special verdict or any other form of finding allowed by the court, the general question, which party is entitled to judgment, arises upon appeal, and in such eases a judgment disposing of the whole cause may be given at 'General Term, notwithstanding such judgment be adverse to that given at the Special Term.

But Avlien the case is brought for reAriew at the General Term upon an allegation of error in the trial—in the process of ascertaining the facts—the only judgment which can be given for the appellant is one'ordering a new trial.

The court, however, proceeded to observe, that the question of law which formed the ground of decision at the General Term was one which would necessarily arise upon another trial, and which, therefore, it was proper to examine here. The court disposed of the case by affirming the judgment at Special Term.

In these cases we find that the General Term had founded its decisions upon its own exposition of the evidence; in other words, finding the facts. This is all that is expressly held to be erroneous. The present case is wholly different.

The exceptions taken by the plaintiff in the course of the trial to the ruling of the Judge were, the admission of the deposition of Shelton, the record of the judgment in Connecticut, the ruling that the plaintiff must give further proof of title to the note after the defendant had rested, and an exception to his offer to prove by the attorney that the balance which he claimed as due on the note was the avails of property sold as the property of Shelton, but which, in fact, belonged to one George Bliss.

The stock which had been sold as the property of Shelton, to pay the execution, stood on the books in the name of Bliss.

There is not a point made by the plaintiff’s counsel as to these supposed erroneous rulings. If there had been, the objection appears to us wholly untenable. The last is the only one which might deserve notice; but the answer is, that Bliss has never asserted any claim to the stock sold by the sheriff, and the note was fully paid out of what must be assumed to have been Shelton’s property.

There must be judgment for the defendants, dismissing the complaint with costs.


author: Hoffman, J.,

text:
    Henry Suydam, Jr., Almet Reed, and Daniel R. Suydam v. William B. Barber, George W. Girty, and James Doran.
    A firm in Missouri drew two bills of exchange upon a firm in New York, one dated in St. Louis, Missouri, and the other in Ohio. The firm in New York accepted and paid the bills, not having any funds of the drawers in their hands. Barber, one of the members of the firm in Missouri, was sued in a tribunal of that state, upon the bills, without joining his partners, the two other defendants, in this action. After pleading what is equivalent to the general issue, he gave a relicta, and thereupon judgment was rendered against him for the amount of the bills, interests, and costs.
    Two statutes of Missouri were produced in evidence. By one of them it is provided “ that all contracts which by the common law are joint only, shall be construed to be joint and several; next, in all cases of joint obligations, or joint assumptions of copartners, or other’s, suits may be brought and prosecuted against any one or more of those who are so liable.” By the other statute it is enacted, “ that every person who shall have a cause of action against several persons, and be entitled by law to only one satisfaction therefor, may bring suit thereon jointly, against all, or as many of the persons liable as he may think proper.”

      Held, that the effect of these statutes was to convert the joint liability of the partners, upon the bills, into a joint and separate liability, and that an action in Missouri would clearly be maintainable against the other partners, notwithstanding the judgment, had the contract been made there.

      Held, that the fact of the contract being made in the state of New York, where a different rule prevails, would not have been sufficient to defeat such an action in Missouri.

      But held, that as the contract was made in this state, the money was advanced here, the plaintiffs lived here, and the action was brought here, the law of New York, and not that of Missouri, must govern; and as the separate judgment merged the demand, the defendants other than Barber were discharged.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    This cause was tried before Oakley, Chief-Justice, by the consent of parties, without a jury, on the 22d of February, 1856. When the testimony on both sides was closed, the Judge dismissed the complaint; the plaintiffs’ counsel excepted to the decision, and the Judge directed the exceptions to be beard in the first instance at the General Term, and judgment, in the mean time, to be suspended.
    The following are the material facts, as they appear from the pleadings and the evidence on the trial.
    The action was brought upon two bills of exchange drawn by the defendants in their partnership name of Barber, Girty, and Doran, upon the plaintiffs in New York, under the firm name of Suydam, Reed & Oo.
    The first of the bills was for $5,000, and dated the 25th of November, 1845, at four months; the second was dated the 26th of January, 1846, for $8,300, at forty-five days after date. The first bill was dated at Cincinnati, in Ohio; the second at St. Louis, in Missouri. Both bills were accepted and paid by the plaintiffs. They had no funds of the defendants at that time, or since, in their hands to meet or pay such bills; and they, therefore, allege an indebtedness of the defendants to them, by reason of their advances to pay the same. The complaint asks for judgment for the sum of $6,630.89, being the balance due on such bills, including interest to the 16th of September, 1854.
    The defence, as stated in the answer is, that a suit was brought in the St. Louis Court of Common Pleas, in the state of Missouri, in February, 1848, against the defendant Barber alone, for the same cause of action as is involved in the present suit; and that in October Term, 1848, judgment was recovered against said Barber for the amount of $6,415.10. There is a further allegation, that the judgment thus recovered has been fully satisfied.
    At the trial it was admitted that the bills were duly endorsed by the payees thereof, and accepted and paid by the plaintiffs for the accommodation of the defendants. That the plaintiffs were without funds to pay the same; that the defendants provided no funds, and had not paid the bills.
    The judgment record of the recovery in Missouri shows a declaration containing several counts. In one it is alleged that the - defendant, in consideration that the plaintiffs, at the request of the defendant and for his accommodation, had accepted a certain bill of exchange for $8,300, (one of those now sued upon), drawn by Barber, Girty, and Doran, a firm of which the defendant was then a member, upon the plaintiffs, promised to furnish them with money to pay the bill; that neither he nor the said firm, nor any other person, had furnished such money; by reason whereof, they, the plaintiffs, had been obliged to pay, and did pay, the same. A similar statement is made as to the other bill of $5,000, now also sued upon.
    There are other counts upon three other bills of exchange of $4,000 and $1,000' respectively, and the usual money counts; with an allegation of damage to the amount of $25,000.
    The defendant Barber was personally served, according to the practice in Missouri, on the 7th of March, 1848; and appeared and filed a plea equivalent to the general issue.
    On the 31st of October, 1848, he filed a relicta, and thereupon judgment was given for damages, assessed at $6,415.10. The language of the record upon the relicta is this: “ Now at this day came the parties, by their attorneys, and the defendant withdraws his plea herein, and saying nothing farther in bar or preclusion of the plaintiff’s action against him; therefore the court doth assess the damages of said plaintiff, sustained by reason of the non-performance of the promises and undertakings in this declaration mentioned from the instruments of writing, on which this action is founded, at the sum of $6,415.10. It is therefore considered that the plaintiffs recover of the defendant the damages aforesaid, in form aforesaid, by the court assessed, and also their costs and charges, and have therefor execution.” It was agreed between the parties that execution on the judgment be stayed until the 1st of.. February, 1849. On the 5th of June, 1852, a paper was executed and made part of the record and proceedings as follows :
    “ Suydam, Reed & Go., plaintiffs, ) v. V
    William B. Barber, defendant. )

    “In the St. Louis Court of Common Pleas, judgment for $6415.10, October 31st, 1848, upon a conditional compromise made by defendant, by giving $500 cash, and five notes, for $500 each, at one, two, three, four and five years from date, pursuant to the terms and conditions of a bond of this date, from William B. Barber to Suydam, Reed & Co. I, as attorney, order the said judgment in this case to be satisfied of record, by order of the plaintiffs.
    BRITTAN A. HILL, for EAGER & HILL,
    “ Attorneys of Record for plaintiffs.
    “ St. Louis, June 1, 1852.”
    The bond referred to in this instrument was dated the 1st of June,' 1852, and was given by Barber alone to the plaintiffs acknowledging himself indebted in the penalty of $12,000. It recited the judgment; that Barber had compromised the same, conditionally, upon the terms stated; that, in case of failure to pay the notes, or either of them, the cash paid, and the amount of any of the notes paid, was to be credited on the judgment, and the whole balance was to be deemed immediately due; that, upon such considerations, the plaintiffs had ordered said judgment against Barber to be satisfied upon the conditions and by virtue of the bond; that the debts evidenced by the j udgment were to remain in force until all the notes were paid. It then declared “ that the satisfaction of such judgment is in nowise a payment of said debt.” The condition was, that Barber would pay the notes at maturity, with interest thereon.
    The introduction of this bond in evidence was objected to by the defendants’ counsel.
    Any difficulty, as to the point on which of the counts the assessment of damages was made, is removed by the admission of the plaintiffs, that the drafts in suit were among those mentioned in the judgment record.
    A statute of Missouri, afterwards noticed, was read in evidence.
    The defendants’ counsel moved, at the trial, to dismiss the complaint, on the ground that the recovery of the judgment in' Missouri against the defendant Barber, and the subsequent entry of satisfaction thereof by the plaintiffs, extinguished the indebtedness of all the defendants upon the bills. This motion was granted, and the ruling excepted to. The exceptions were directed by the Judge to be heard, in the first instance, at General Term, and the judgment was suspended.

      Willard, for the plaintiffs.
    Carter, for the defendant Girty.
   Hoffman, J.,

delivered the opinion of the court. The question is, what is the effect of the judgment recovered in Missouri against Barber, one of the parties to the bill of exchange, upon the action here ?

If that judgment had been recovered in any competent tribunal of this state, or of any sister state, without such a particular statute as exists in Missouri being before us, the case would be a simple one. The authorities are decisive, that a judgment recovered upon a note, given by one copartner for the debt of the firm, or a judgment against one upon the original cause of action, is a bar in favor of the rest, to a subsequent suit. (Peters v. Sandford, 1 Denio, 224; Pierce v. Kearney, 5 Hill, 85; Robertson v. Smith, 18 Johnson’s Rep. 459; McMasters v. Vernon, 3 Duer’s Sup. Court Rep. 250.)

The sections of the statute of Missouri referred to are as follows: 1st. All contracts which by the common law are joint only, shall be construed as joint and several. 2d. In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.” (Rev. Stat. Missouri, 1845, p. 112.)

The first of the important questions discussed by counsel which I shall examine is, the effect which we are warranted in supposing would be given to the judgment in the courts of Missouri, if the present action had been brought there.

Besides the statute before quoted, there is another provision of some consequence. It is, that every person who shall have a cause of action against several persons, and be entitled by law to only one satisfaction therefor, may bring suit thereon jointly against all, or as many of the persons liable, as he may think proper.” (R. S. 812, § 20.)

The holder, then, of a bill of exchange or promissory note, accepted or drawn by partners, could sue one of them alone; and it seems almost necessarily to follow, that a recovery on such a suit for a separate liability would not preclude an action against the others. It becomes, by force of the statute, the ordinary case of a joint and several responsibility, when a recovery against one without actual satisfaction, would be no bar to an action against the other. This common law rule has been regulated by various statutes in many states. (Chitty on Pleadings, vol, i, p. 43, a. 4.)

When, therefore, the plaintiffs had elected to sue in Missouri one defendant, they sued under provisions of a statute passed before the contract, and valid in that state. Had the contract been made there, a subsequent action against the other partners, brought in that state, could have been sustained. And thus, if a suit had been brought in Missouri like the present, the question would have been reduced to this—whether the contract, treated as made in New York, would vary the rule otherwise applicable ?

Without entering into a question which would lead us far into a difficult subject, I may observe, that it appears to me difficult to support the proposition that the law of New York as to a separate judgment discharging a joint liability, so enters into the contract, that the law of another state, in which the suit is brought, holding that it shall not have that effect, would be unconstitutional. What is it in reality but a mode of redress ? Instead of being obliged to sue altogether, and take, as in New York, a judgment, effective by execution only against joint-stock property, and against those served, you may sue one alone, take the proper relief against him, proceed afterwards against the rest, and get further relief against them.

But the question is, must not the case be governed by the law of New York? The contract was made here; the bills were drawn in Ohio and Missouri upon a house here, and the parties were and are resident here. The money was paid in .New York. In truth it was a mere advance of money for the use of the defendants, with the bills for vouchers. The contract to repay arose in the place were the loan was made; and the parties are sued here. Oan, then, the existence of a different rule in Missouri change the rule in New York, or prevent its application?

The constitutional provision is, “ that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Congress, then, in the statute of 1790, provided, “that such records and judicial proceedings (authenticated' as therein prescribed) shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”

Is it the meaning of the act that the judgment is to have the same operation in every other state as it had as a judgment in the state in which it was rendered, or is it that it shall have the same operation as a domestic judgment would have in the state in which it may be produced ?

Justice Wayne, in McElmoyle v. Cohen, (13 Peters, 326,) says, “that faith and credit, then, is given in the states to the judgments of their courts. They are record evidence of a debt, or judgments of record, to be contested only in such way as judgments of record may be; and consequently conclusive upon the defendant ip every state, except for such causes as would be sufficient to set aside the'judgment in the courts of the state in which it was rendered. In other words, as has been said by a commentator upon the constitution: “If a judgment is conclusive in a state where it is pronounced, it is equally conclusive everywhere in the states of the Union. If re-examinable there, it is open to the same inquiries in every other state. (Story’s Com. 183.) It is therefore put upon the footing of a domestic judgment; by which is meant, not having the operation and force of a domestic judgment beyond the jurisdiction declaring it to be a judgment; but a domestic judgment as to the merits of the claim, or subject matters of the suit.”

The application of the rule thus stated in the Supreme Court, in the case cited, was this: the action was in the state of Georgia, upon a judgment recovered in South Carolina. A plea of the statute of limitations of Georgia was interposed and supported. There was an express statute in Georgia that actions of debt on judgments obtained, in courts other than the courts of the state, must be brought within five years after judgment obtained.

The court declare that a plea of the statute of limitations was a bar to the femedy, and consequently the lex fori must prevail. And the court say: “ There is no direct constitutional prohibition upon the states, nor any clause of the constitution from which it can be even plausibly inferred,' that the states may not legislate upon the remedy in suits upon the judgments of other states, exclusive of all interference with their merits. Suits must be brought upon judgments within the period prescribed by the local law, the lex fori, or they will be barred.”

In the Bank of Alabama v. Dalton (9 Howard, 528) the decision cited was affirmed, and Justice Catron, in delivering the opinion of the court, observes: “ The legislation of Congress amounts to this—that the judgments in another state shall be record evidence of the demand, and that the defendant, when sued upon the judgment, cannot go behind it and controvert the contract or other cause of action on which the judgment is founded; that it is evidence of an established demand, which, standing alone, is conclusive between the parties. This is the whole extent to which Congress has gone. As to what further ‘ effect’ Congress may give to judgments rendered in one state, and sued on in another, does not belong to this inquiry. We have'to deal with the law as we find it, and not with the extent of power Congress may have to legislate further in this respect. That the legislation of Congress, as far as it has gone, does not prevent a state from passing acts of limitation to bar suits on judgments rendered in another state, is the settled doctrine of this court.” See further the learned opinion of Justice Wayne in Townsend v. Jamieson, (9 Howard, 407.)

In the case of the Bank of the United States v. The Merchants' Bank of Baltimore (7 Gills. Mary. Rep. 416) the construction of the Constitution and act of Congress was carefully considered. It was held that a judgment recovered in Pennsylvania between the same parties, for the same cause of action, might be specially pleaded to an action in Maryland, though commenced first and pleaded to. That such judgment was as conclusive evidence of a debt from the defendant to the plaintiff in Maryland as it was in Pennsylvania. That the original cause of action was merged there by the judgment, and therefore was extinguished in Maryland. Hence that the action of assumpsit could not be maintained.

The exposition of the statute is thus expressed by Judge Le Grand: “Judgments of a state court shall have the same faith and credit and validity as in the state where they were rendered, so far as their existence, and their conclusiveness on the merits of the original cause of action is concerned, and therefore are not to be impeached, except on the ground of a want of jurisdiction or fraud; but beyond this they are to be considered as foreign judgments, and to be dealt with accordingly.” The same doctrine is substantially stated by Martin, Justice, in the court above.

Brayle v. McClellan, (7 Gill. & John. 443,) in the Court of Appeals of Maryland, determined that the judgment of another state was not to be placed on a footing with a domestic judgment in the distribution of assets, but was to be treated only as a foreign judgment, and therefore a simple contract debt, according to the original character of the demand. Although the judgment had a preference in Pennsylvania, where it was obtained under a statute, it had none in Maryland, where the assets were distributable under the law of that state.

In Candee v. Clark & Brown (2 Michigan Rep. 255) the plaintiff had recovered, in a court in Ohio, a judgment against one of the parties to a promissory note, signed in their partnership name. In an action upon the note, in Michigan, against both, it was held that the judgment was a bar to the recovery. The original joint liability being at an end, the note was no longer a subsisting contract against both. The plaintiffs had elected to proceed to judgment against Brown alone, under the statute of Ohio.

I have carefully examined the statute book of Ohio, and find no such provision as in Missouri, (Chase’s Stat. Ohio, vol. 3, p. 1680.)

The general principle of law, independently of the effect of the Constitution and act of Congress referred to, would decide this case in favor of the defendants. Although the law for expounding a contract is the law of the place in which it was made, the remedies for enforcing it must be the law of the place in which it is sued. Doun v. Lippmann (5 Clark & Finelly, 1) is a leading authority upoti this point in the House of Lords. And in Townsend v. Jamieson (9 Howard, 407) the Supreme Court state the rule thus: “The obligations of the parties to a contract, except in a well-known case, are to be -expounded by the lex loci contractus. Suits brought to enforce contracts, either in the state where they were made, or in the courts of other states, are subject to the remedies of the forum in which the suit is brought, including the statute of limitations.”

We may also refer to that class of eases in which such judgments are disregarded, when they have been -recovered in other states against parties not served with process, or not appearing voluntarily. It is sufficient to refer, on this point, to the cases in this court of Harrod v. Baretto, (1 Hall, 155; 2 Hall, 302,) and Wilson v. Niles, (2 Hall, 358). In the latter case there was a judgment in Alabama against three partners upon a bill of exchange of the firm.

One was served, and by a statute of that state it is provided, “ that where the suit is against all, and one is served, the plaintiff may proceed to judgment as if the writ had been served on all, and the judgment shall be equally valid and effectual.” The defendant in the suit in this court had not been served, and the court held, that the law of Alabama could not give jurisdiction over his person, as he was not within that state when the judgment was rendered, and that the judgment, therefore, neither bound him personally, nor his separate property.

In the present case we are called upon to give to the judgment of the tribunal of Missouri a totally different effect from that we would give to a judgment in another court of our own state. We have not found an authority to show that such a judgment shall, in its operation, go beyond, or have a different effect from, a mere domestic judgment. We are required to attribute such variant operation to it, by force of a statute of Missouri, inconsistent with the settled law of New York. In effect, then, the foreign statute would supersede the domestic law. We do not think that any rule of judicial comity, or any construction of the law of Congress, renders this obligatory; on the contrary, we apprehend that entire deference to both is rendered when the judgment in question is held to be absolutely conclusive upon the defendant Barber, as to his responsibility for the demand upon the bill, as he has not questioned the jurisdiction of the court or the fairness of the proceedings ; but that as to the other defendants, the law of this state must prevail, and by that law the separate judgment has merged the demand.

We conclude that the judgment at Special Term dismissing the complaint must be affirmed, "with costs.


text:
    Coster and others, appellants, v. The N. Y. and Erie R. R. Co. and Daniel Drew, respondents.
    "Where the plaintiffs and other persons were joint owners of a steamboat, and entered into a contract with one of the defendants, by which the latter hired the boat and agreed to pay to the owners one hundred dollars per day for the use thereof; in an action to recover such compensation all the owners must join.
    A joint cause of action vested in two or more cannot be split up into several at the option of those in whom it is vested; the defendant is not liable to be vexed with two or more separate suits for the same cause of action, and be compelled to litigate with each part owner separately.
    If any of the boat owners refuse to become plaintiffs, they should be made defendants
    The fact that the part owners who are not made parties sold their shares or parts of the boat to the defendant, for whose benefit the same was transferred to the other defendant several months after the hiring, is not a sufficient reason for not making them parties, when it is in nowise alleged that they also sold or relinquished their interest in the compensation for the use of the boat before the time of the sale.
    When, in the agreementreferred to, the hirer agreed to pay all the expenses of running the boat, and keep her in good repair so long as the owners should permit her to remain in the defendants’ possession, though it discloses a probable intention to run the boat, does not compel the defendants to do so; so long as the defendant pays the hire he may run the boat or not at his pleasure.
    And an averment that the boat has been greatly damaged, impaired, and deteriorated, and is constantly depreciating in value, by reason of being withdrawn from navigation and laid up at the dock, and from want of care and attention in her safe keeping and preservation, and from the defendants’ neglect to keep her in good order and repair, and in a state fit for navigation, is not a proper form of averring a breach of the agreement to keep the boat in repair; and if it were, it would not warrant the plaintiffs’ prayer for relief, viz., a recovery of the value of the boat.
    If such a cause of action is to be claimed on the ground that the defendants’ acts are tortious, and subject them to the payment of the value of the boat as damages, then there is an improper joinder of causes of action, one in tort, the others in contract.
    The defendant to whom the title of the other part owners has been transferred is not liable to the plaintiffs for the time, or for the neglect of the other defendants to repair.
    Whether a suit in equity will or will not lie to restrain the owners of a major portion of a vessel from removing her from the state, or whether the jurisdiction of such matters is in admiralty only, it is clear that such a suit cannot be joined with an action on the contract for the hire of the vessel,
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    Appeal, by plaintiffs, from a judgment at Special Term, by Duer, J., sustaining the demurrer to the complaint. The substance of the pleadings is sufficiently stated in the opinion of the court.
    P. Y. Gutler, for appellant.

      D. B. Baton, for H. Y. & Erie R. R. Go., Chas. Jones, for Drew, respondents.
   By the Court. Woodruff, J.

This case comes on, to be heard, upon an appeal from the judgment of the Special Term,-in favor of the defendants, upon their several demurrers to the complaint.

The complaint, in the first nineteen folios thereof, avers that the plaintiffs, and Cornelius Vanderbilt and James B. Townsend, were, on the 22d day of October, 1853, owners of the steamboat Francis Skiddy, in the proportions following: Coster and Andrews, the plaintiffs, each two-twentieths, Vanderbilt eleven-twentieths, and Townsend five-twentieths, and being such owners, they, on the day aforesaid, entered into an agreement with the defendants, the New York and Erie Railroad Company, by which they let, and delivered to the company, the said boat, and the company hired, and took possession thereof, and agreed to pay all expenses of running the same, and to keep her in good repair, and to pay to the said plaintiffs, Vanderbilt and Townsend, for the use thereof, one hundred dollars per day, “ during all such time as the said plaintiffs, Vanderbilt and Townsend, should permit the said boat tó be and continue in the possession of the said company, and not withdraw the same from such possession.”

That from the date of such agreement until now the said boat has been, and now is, in possession of the company, under such agreement, by the permission of the plaintiffs, and Vanderbilt and Townsend, and has never been withdrawn by them. That the said plaintiffs, and Vanderbilt and Townsend have duly performed, etc.; but that the said company have never paid the said sum of one hundred dollars per day for the use of the said boat. That the said company are liable to pay the amount aforesaid, and that the plaintiffs are each entitled to one-tenth part thereof, and that the company refuse to pay the same or any part thereof.

This is a plain statement of a good and sufficient cause of action, on a special contract, and for the recovery of money which, upon the facts stated, is due to the plaintiffs, and Vanderbilt and Townsend. The contract set forth is single and entire. The agreements, on the part of the company, are to, and with, the plaintiffs, and Vanderbilt and Townsend, jointly, and not severally. There is no intimation that the defendants have undertaken to pay the charter money to the several owners in the proportions of their respective interests in the boat.

We know of no rule of pleading, nor any principle of law, authorizing the plaintiffs to maintain a separate action for their particular portion of these moneys, without making Vanderbilt and Townsend parties. A joint cause of action, vested in two or more, can not be split into several at the option of those in whom it is vested. The company are not liable to be vexed with two or more separate suits, for the same cause of action, and having, as the case may be, litigated the claim of two of the owners, to be again called upon to litigate the same matters, under the same joint contract, with Vanderbilt, and again with Townsend. The circumstance that the consideration, for the agreement by the company, was the use of a steamboat, or vessel, of which the plaintiffs are part owners, makes no difference. Besides, if there was any warrant for permitting such an agreement to be treated as, in effect, running to each severally, and entitling each to recover the proportion of the charter money which, as between the co-owners, would fall to his share, (which, however, cannot be conceded in this case,) then the plaintiffs themselves, could not join in the action. If their interests are several, and their rights several, their title to the money to be recovered by each respectively, is several, and the causes of action thus assumed to be several can not be joined.

But, in truth, as before observed, the company’s agreement is single; it is made with all; the title to recover under it is vested in all; the money due upon the agreement belongs to all, irrespective of the state of the accounts between them and the respective shares into which it may be divisible when recovered, with which the company have nothing to do; and all must unite in the action brought to enforce the agreement, and recover the charter money, unless some facts are stated in the complaint which excuse the plaintiffs from uniting Vanderbilt and Townsend with them as plaintiffs. If that be done, then, notwithstanding the rule be as we have stated it in actions at law, the plaintiffs may unquestionably proceed upon their equitable rights, and, in equity, enforce them and recover the money. But even then, they must make Vanderbilt and Townsend parties to the action, as defendants, unless they also show that Vanderbilt and Townsend have ceased to have any interest in the matters in controversy.

What facts, then, farther appear in this complaint which are relied upon as an excuse for not joining them as plaintiffs ?

The only further statement in the complaint, affecting Vanderbilt and Townsend in any manner, and, therefore, the only one which bears upon the question above considered is, that after-wards the company, with malicious intent to cheat, etc., etc., “ fraudulently purchased from Vanderbilt and Townsend their respective five and eleven-twentieth parts of the said steamboat, in the name of Eli Kelly, but in trust, and for the benefit of, the said company.”

Whether this purchase was made with a bad motive or not is quite immaterial; the motive furnishes no ground of appeal to any court unless, nor until, some wrongful act is done, attempted, or threatened, which act it is proper should be either restrained or redressed. The act charged here is a perfectly lawful act, a purchase. The plaintiffs have no cause of complaint in that respect. Vanderbilt and Townsend had a right to sell; the company had a right to buy; and unless the plaintiffs mean that the purchase was a fraud upon Vanderbilt and Townsend, no wrong was done to any one thereby. When Vanderbilt and Townsend come into court, alleging that the purchase was fraudulent, the allegation may be material. This averment of fraud, therefore, has no bearing upon the question whether Vanderbilt and Townsend should be parties to the action. The plaintiffs are not, and could not, upon any facts stated, ask to have the sale set aside, and, if they did, they must make Vanderbilt and Townsend parties, either plaintiff or defendant. The case stands, then, upon the fact averred, that Townsend, on the 14th day of November, 1853, and Vanderbilt, on the 10th of March, 1854, sold to the defendants (who purchased in the name of Eli Kelly) their respective twentieth parts of the said boat; and the plaintiffs claim to recover for, not only the money accrued and payable for the use of the boat since those dates, but, also, from the day the original agreement was made, i. e., for over thirteen thousand dollars accrued before Vanderbilt sold his share of the boat; and there is not an intimation in the complaint that Townsend, for the period in which he continued to be an owner, and Vanderbilt, for the residue of the term, are not jointly interested with the plaintiffs in the recovery of that money. The averment of the sale of the boat does not, therefore, constitute any reason for not making Vanderbilt and Townsend parties.

If not made parties plaintiff they should have been made defendants. There is no averment that they refuse to join in the action; there is no averment that they have been guilty of any fraud, or are parties to, or are even cognizant of any fraud done, attempted, or contemplated by the company.

The demurrer for want of these parties was, therefore, properly sustained.

1. In reference to the cause of action now in question, the purchase of the boat by the company, if true as alleged, is undoubtedly a sufficient reason for proceeding by what would formerly have been termed a bill in equity. The union of interest in the company, as owner and hirer, would so embarrass an action at law, that adequate justice could not be done; but all parties interested in the charter money should be before the court.

2. The next cause of action, or combination of facts, upon which the plaintiffs rest a claim to recover, consists in averments that the company, in May, 1854, caused and procured the said sixteen-twentieths of the said boat to be conveyed, by the said Eli Kelly, to the defendant Daniel Drew, (the said Drew fraudulently pretending to be the owner, but being in fact the mere trustee and instrument of the company); and that Drew and the company have fraudulently combined to cheat the plaintiffs, the said company procuring the said Drew to consent, and Drew consenting to withdraw the said boat from navigation; the said Drew taking possession, laying her up at the dock and keeping her unemployed, with the fraudulent design of releasing and discharging the said contract of hiring; and that the said Drew on or about the 19th of May, 1854, as such pretended but fraudulent owner, took possession of the boat, and, without the plaintiff’s consent, withdrew her from the navigation in which she had been employed under the agreement .of hiring, laid her up at a dock where she has ever since remained unemployed and unused, but in the possession of the company, through and by means of said fraudulent combination and confederacy .with Drew; and the plaintiffs then aver that “ by reason of being so fraudulently withdrawn from navigation and laid up at dock by the defendants, and from want of care and attention on their part in her safekeeping and preservation, and from their neglect to keep her in good order and repair, and in a state fit for navigation, as they ought to have done, the said boat has been greatly damaged, impaired, and deteriorated in value.”

The plaintiffs then add, that their shares of the boat were worth fifty thousand dollars before the said purchase by the company and the said withdrawal from navigation, which they charge will be lost by the wrongful acts mentioned, and which they claim to recover in addition to the said hire of the boat from the defendants herein.

The distinct and only cause of action here alleged, is the withdrawal of the boat from navigation, laying her up at the dock, and the damage and deterioration in value arising from that, and from neglect and want of repairs; and this is made the basis of a claim to recover her full value.

Now, if this cause of action is claimed to arise on the contract alleged in the complaint, it is liable to two difficulties. In the first place, no agreement by the company to employ the boat upon the Hudson River or elsewhere is alleged in the complaint; the promise and agreement by the company is to pay all expenses of running the boat, and to keep her in good repair, and to pay $100 per day for the hire thereof, so long as the owners should permit her to remain in the possession of the company. This undoubtedly discloses an intention to run the boat, and binds the company to pay the expenses, if any, so incurred, but so long as the company retain possession of the boat they must pay the hire whether they run the boat or not, and so long as the company pay the hire they were at liberty to run her or not at their pleasure.

And as respects the agreement to keep the boat in repair, we doubt very much the sufficiency of the averment in that respect. It is not stated in any manner which can be made the subject of a distinct issue, by denial, that the company have not kept the boat in repair. That, and that only, was their agreement, and it is not stated that they have not done so; but the statement is, that the boat “ has been greatly damaged, impaired, and deteriorated, and is constantly depreciating in value, by reason of being so fraudulently withdrawn from navigation and laid up at dock by the defendants, and from want of care and attention on their part in her safe-keeping and preservation, and from their neglect to keep her in good order and repair, and in a state fit for navigation.” A denial of this averment would, it is true, form an issue upon the fact of damage and deterioration from the combination of causes stated; but it would not be adopted to put in issue what, if it is claimed, should be averred as a fact, viz., that the company have not kept the boat in repair.

Besides, these facts do not warrant the relief prayed. If this cause of action is to be regarded as arising under the contract set forth in the complaint, the defendant Drew is not liable upon this cause of action at all; he has never contracted with the plaintiffs, and by virtue of the agreement in the complaint, he is not liable to damages; nor does the averment that the boat is constantly depreciating in value, and that the plaintiffs apprehend that her value will be wholly lost to them, warrant any recovery of her value as such. If the plaintiffs recover upon the contract they recover the damages actually sustained by a breach thereof, not the value of the boat, as such, nor damages which they apprehend will in the future be sustained. And it is, moreover, at least doubtful, so long as the company retain the possession of the boat and pay, or are called upon to pay the hire, (and both of these are alleged and insisted upon by the plaintiffs,) whether an action will lie on the agreement for not keeping the boat in repair, or if in form it may possibly be sustained, whether any more than nominal damages can be awarded; it is, however, not necessary to pursue that inquiry.

The only ground upon which Drew can be charged upon this cause of action, (if at all,) and the only ground upon which the company can be charged with him for the value of the boat, is that their fraudulent acts are tortious and tend to the destruction of the property, or amount to a conversion of the property to their own use. This was not insisted upon by the plaintiffs' counsel on the argument, and we apprehend it cannot be successfully insisted upon, see Moody v. Breck, (1 Sandf. 304, and cases there cited); and if it could, then the complaint is bad, because it attempts to join such a cause of action with a cause of action arising upon contract only.

3d. The remaining cause of action, or ground for relief, consists in averments that the plaintiffs are citizens of this state, residing in the city of New York, and the boat an American vessel, and that for the purpose of defrauding the plaintiffs, etc., the defendants threaten to remove the said boat from the state of New York, and from the United States, to Canada, and there to sell her, or the interest of the defendants therein, to British subjects and keep her permanently beyond the jurisdiction of the courts of this state and of the United States, and that if the defendants should carry such threats into execution, the rights and interests of the plaintiffs in the vessel would become worthless.

Viewing this action as founded upon contract only, there is nothing in this averment calling for the interposition of the court, as a court of equity, in aid of the recovery of the money claimed; the relief prayed for, so far as it rests upon these last averments, is an injunction. If it be conceded that, upon the facts alleged, the plaintiffs would be entitled to come into this court, as a court of equity, and seek and have an injunction to prevent the removal of the boat beyond the jurisdiction of the state, there would be no propriety in inviting an inquiry into the right and power of the owners of a major part of the vessel to manage and control the same:with the claim to recover for the use of the boat. The act threatened does not render nor tend to render the judgment, which the plaintiffs seek for the hire of the boat, ineffectual, nor is there any thing stated showing it to be at all doubtful that the company are able to pay, and will pay, whatever they may be adjudged to pay.

So far as this part of the complaint proceeds upon the idea that, as part owners, the plaintiffs may come into a court of equity to restrain other part owners in the management or control of the vessel, it cannot be united with the action on a special contract for the hire thereof. I know of no rule of law or equity forbidding part owners selling their own interest in the vessel to any persons they may see fit, whether citizens or foreigners. But whether this court should, as a court of equity, take jurisdiction of the matter of the control and use of the vessel, or whether admiralty has exclusive, as it manifestly has appropriate jurisdiction, on that subject, we do not find it necessary to say, since we are of opinion that a ground of jurisdiction of this sort between part owners, as such, is not properly joined with an action on the agreement set forth in the complaint for the hire of the vessel, to recover the money due therefor.

Although we think that the relief sought cannot be had against the defendant Drew, as prayed, we do not think he is an improper party to the suit.

The plaintiffs pray that both defendants be adjudged and decreed to pay the whole sum due for the hire of the boat. The defendant Drew is in no degree whatever interested in, and still less liable for any of the charter money accrued before the title to sixteen-twentieths of the boat was transferred to him; and as to what has since accrued he is no more liable, for if he is owner in fact, -and has done nothing to discharge the company from their obligation to pay, he, instead of paying, will be entitled to receive from the company a very large sum; but if the facts be as alleged and he only holds for the benefit of the company, still he has never agreed to pay to the defendants the hire of the boat. It is not alleged that he has collected it, or any part of it, and is liable to account to the other part owners therefor. A liability to such an accounting, and an action therefor, could not be joined with an action against the company for the hire unpaid, since in that accounting the company would have no interest.

I have already suggested that he is no more liable on the agreement for a neglect to repair; he has not agreed to repair, and a proceeding to recover damages against him, as part owner in possession, for neglect or carelessness, if it could be sustained, could not be joined with the action on the present agreement.

Still, in respect to the matter of the money due for the use of the boat, I apprehend that holding the legal title to sixteen-twentieths thereof, he is not an improper party, though it may be that if all the facts stated in the complaint be taken to be true and those sixteen-twentieths belong to the company, Drew would be a formal party only and it might not be erroneous not to join him.

Our conclusion is, that the demurrer, for the reasons stated above, was properly sustained, and that the judgment thereon should be affirmed. Doubtless leave would have been given to amend, if it had been desired by the plaintiffs.

Judgment affirmed, with costs.


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    Alfred Peabody, Edward P. Flint, and George H. Kellogg v. Asahel Beach, Elisha Bloomer, Frederick Hadley, and Ralph Hill.
    In an action against two or more, as joint debtors for money lent, one of the defendants cannot defeat the action by setting up, by way of set-off or counterclaim, a claim to damages in 1ns own favor individually against the plaintiiis for fraud and' failure, and neglect to perform their duty to him as his agents under a power of attorney authorizing them to attend to his private business, to manage the same for his benefit.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    Heard, April;
    decided, June, 1856.
    Appeal from a judgment by Mr. Justice Hoffman at Special Term, sustaining a demurrer to a counter-claim.
    The action was brought by the plaintiffs against all the defendants on a joint contract made by them to the firm of Flint, Peabody & Co., composed of the plaintiffs and one James P. Flint, who, prior to the commencement of the action, had released all his interest to plaintiffs.
    The defendant, Elisha Bloomer, answered severally, that he had appointed the plaintiffs and the said Flint to attend to his, Bloomer’s, interest in the management of the sale of a certain machine belonging to him, that the plaintiffs and Flint accepted the agency, and that they combined to defraud Bloomer, by suffering the machine to be sold in violation of that duty as his agents, and to his damage of $5,000. To this portion of the answer the plaintiffs demurred, and judgment upon the demurrer was rendered at Special Term in their favor.

      Moody, for the defendant; Bloomer, appellant.
    This action, being upon contract, it was competent for Bloomer to set up a counter-claim, arising also upop. contract in his favor against all the plaintiffs. Parsons v. Nash, (6 Howard, 454.) The 150th section of the Code clearly indicates that there may be cases in which the counter-claim may not be due to, or in favor of, all the defendants, and a counter-claim, under the Code, has a broader signification and more extended application than the old statute of set offs, Lindsay v. Jackson, (2 Paige, 587,) Gleeson v. Moon, (2 Duer, 462.) There is no good reason why Bloomer should not be allowed to apply his demand in extinguishing the claim of the plaintiffs against all the defendants; had he paid the demand in cash, and the plaintiffs had brought their suit for their claim, he clearly might have set up the payment in bar, and that plea, under the Code, would have been a counter-claim as much so as that set up in this action.
    The judgment on the demurrer should, therefore, be reversed, and judgment rendered for the defendant.

      .Le Forrest, for the plaintiffs.
    The facts alleged in that portion of the answer which is demurred to might, if proved, sustain a separate action for damages by Bloomer alone against the firm of Elint, Peabody & Co., consisting of the plaintiffs and James P. Elint, but they cannot be availed of in the present action by way of counter-claim.
    1. The defendant’s claim is against the plaintiffs and James P. Flint jointly. If the damages counter-claimed were made the ground of an original action by Bloomer as plaintiff, it would be necessary for him to unite Elint as a co-defendant with the other partners of Elint, Peabody & Co.
    2. If it should be said that Bloomer does not claim damages upon a contract between him and Flint, Peabody & Co., but upon an alleged tort, then the counter-claim is unauthorized, because the complaint is on a contract alone.
    3. The proposed counter-claim, if permitted, can be available to Bloomer alone, and not to his co-defendants. A several judgment could not be had in this action between the plaintiffs and Bloomer severally.
    4. The obstacle in the way of the counter-claim last referred to is not relieved by § 150, nor by § 154 of the Code of Procedure.
    5. Nor can the matters averred, for the reasons already stated, be availed by way of set-off, or rather defence, and for this I cite the following authorities, 3 Johnson Chanc. Rep., 574; id., 351; Collyer on Partnership, 761. I, therefore, claim that the judgment appealed from be affirmed, with coste.
   By the Court. Woodruff, J.

This action is brought to recover moneys alleged to be due to the plaintiffs in their own right, and as asignees of their copartner Flint, from the defendants, as joint debtors, for money lent and advanced to the defendants, and paid, laid out, and expended for their use as copartners.

The defendant Bloomer, answering separately, among other defences sets up a set-off, or counter-claim, in his own favor individually, for damages sustained by himself, by reason of the plaintiff and the said Flint’s fraud and negligence, in this, that he appointed the plaintiffs and the said Flint his agents, under a power of attorney, to manage and attend to his interests in California, which power of attorney he avers the plaintiffs and the said Flint received and undertook to perform, keep, and execute the trusts, duties, and obligations thereby given, conferred and imposed. By the fraudulent violation of their duty in this respect, the defendant avers that he has sustained damages, which he insists upon as a set-off or counter-claim in this action.

We fully agree to the conclusion at which Mr. Justice Hoffman arrived in the examination of the demurrer to this defence, at the Special Term, that to an action against several joint debtors, for a debt due by them as copartners, one of them cannot avail himself either by way of set-off or counter-claim of such a defence. If the defence have any foundation, as very imperfectly, (we think), exhibited in the answer, it belongs to Bloomer alone.

If it can be regarded, under the averments in the answer, as arising upon contract, then it is a fatal defect that there is no mutuality between the two claims which are exhibited. If it be deemed a tort set up in the answer, then it is not so connected with the subject of the action that it constitutes any ground of recoupment. And in no aspect is the defence such that in this action there can be a separate judgment against the defendants, who are jointly liable, and who do not and could not set up the defence upon which the defendant Bloomer relies. The case of Parsons v. Nash, (8 How. 454,) instead of sustaining such a counter-claim, appears to us to tend to the contrary.

"When one of several joint debtors pays the debt, that is payment for all, and any or all of them may set up the payment in bar. Here there is no pretence that either of the other defendants could have done so.

But,, without pursuing the subject, it must suffice to say, that the elaborate opinion pronounced at. Special Term by Mr. Justice Hoffman, appears to us to be entirely sound in its conclusion, and it is unnecessary to enlarge upon the subject here.

The judgment appealed from must be affirmed, with costs.