text:
    CHARLES GORHAM ALLEN, Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Husband and wife. Action by husband to recover for his pecuniary loss, and for the loss of the services and comfort of the society of his wife, caused by the wrongful act of the defendant.

    On Christmas night, 1888, the plaintiff, his wife and two young nieces, hoarded a train of defendant in the lower part of the city, intending to go to plaintiff’s home, near Seventy-second street and Ninth avenue. On reaching the railway station at the latter place they started to leave the car. The plaintiff started first, and the two little girls followed next, and Mrs. Allen was last in the order. Before Mrs. Allen could leave the car and get off the train, and as she stood in the open door of the car platform, the train started. She was told by the guard to get off. She said, “ How can I when the train is in motion ? ” The guard then said, “ Get off, I say,” and putting his hand upon her back, pushed her. Mrs. Allen was lame, having a stiff knee, and when she was pushed she fell off the platform of the car upon the platform of the station, and the train, which was full of passengers, passed on, leaving Mrs. Allen with the plaintiff and the two little girls on the station platform. The result of the fall was a fracture of the scapula of the left shoulder, which never united, and she was permanently disabled in her left arm and shoulder. The injury is claimed to be incurable, and she is compelled to wear an iron frame about her body to support the shoulder, and she can make no exertion without pain; and it is also claimed that some of the muscles were permanently detached from the shoulder. The jury found a verdict in favor of the plaintiff for three thousand dollars, and the defendant claims that this amount is excessive.

      Jleld, that the verdict of the jury settles the facts as stated, and the proofs were sufficient to sustain the verdict. In actions of this kind the loss of the society and companionship of the wife is an element of damage in addition to the loss of service. The claim comprehends and includes the loss which will continue during her life. In view of the facts and circumstances, the recovery was not excessive. The various exceptions taken during the trial to the reception and refusal of evidence, to the judge’s charges and his refusals to charge as requested, are without merit.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for appellant.

      A. E. Blackmar, attorney, and Edward S. Fowler of counsel, for respondent.
   By the Court.—McAdam, J.

The action was brought by the plaintiff to recover his pecuniary loss resulting from an injury done to his wife by the wrongful act of the defendant. On Christmas night, 1888, the plaintiff, his wife and two young nieces started to go from the lower part of the city to plaintiff’s home, near 72d street and 9th avenue. They took a train on defendant’s elevated road and on reaching the station at 72d street and 9th avenue, started to get out. The plaintiff started first, the two little girls following, and Mrs. Allen being last. Before Mrs. Allen could get off, the train started and, as she stood in the open door of the car platform, she was told by the guard to get off. She said, How can I when the train is in motion ? ” The guard then said, Get off, I say,” and putting his hand on her back, pushed her. Mrs. Allen was lame, having a stiff knee, and when she was pushed she fell off the platform of the car upon the platform of the station, and the train, which was full of passengers, passed on, leaving Mrs. Allen with the plaintiff and the two little girls on the platform. The result of the fall was a fracture of the scapula of the left shoulder, which never united, and which left her permanently disabled in her left arm and shoulder. The injury is claimed to be incurable, and she is compelled to wear an iron frame about her body to support the shoulder, and even then it is claimed that she can make no exertion without constant pain. It is also claimed that some of the muscles were permanently detached from the shoulder.

The jury having found in favor of the plaintiff, their verdict settles the facts to he as stated. The proofs satisfactorily establish the result reached by the jury; so that we need not trouble ourselves with the conflict in evidence which arose during the trial. The jury brought in a verdict in favor of the plaintiff for three thousand dollars and the defendant claims that the amount is excessive.

It is a recognized rule of law that in actions of this kind the loss of the society and companionship of the wife is an element of damage in addition to the loss of service. Maxon v. Del., Lack. & W. R. R. Co., 48 Hun, 172; Cregin v. The City of Brooklyn, 83 N. Y., 595; 3 Black Comm., 140; Shouler on Husband and Wife, § 143; Stewart on Husband and Wife, § 77; Smith v. St. Joseph, 55 Mo., 456; Brockbank v. Whiteboro R. R. Co., 7 Hurl. & N., 834; Jones v. Utica, etc., R. R. Co., 40 Hun, 349.

The claim comprehends the loss which continues during the life of the wife. Green v. Hudson R. R. Co., 2 Abbott’s Appeals Dec., 277.

The plaintiff’s wife was no doubt permanently injured, and his loss will continue during her life.

In view of the facts, the recovery was not excessive, but moderate. We have examined the various exceptions taken during the trial to the judge’s charge, and to the requests to charge, and find them to he without merit.

It follows that the judgment and order appealed from must he affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.


source: Caselaw Access Project

author: By the Court.—McAdam, J.

license: Public Domain

text:
    WILLIAM H. SCOTT, as Executor, etc., Appellant v. THE MANHATTAN RAILWAY COMPANY, ET AL., RESPONDENTS.

      Ddmages to abutting property caused by trespass of elevated railroad.— Judge’s charge—Particular use to which premises are actually put, as not interfered with by operation of road, no answer to plaintiff’s right to have unrestricted use of same.

    In an action to recover damages to usable value of plaintiff’s premises alleged to be due to maintenance and operation of the defendants’ elevated railroad in the street in front thereof, the trial judge charged the jury : “In deciding the question of damage to rental value during said period, you should consider it with reference to the purpose for which said premises were occupied and used during said period, and give due weight to the undisputed fact that it has been used since 1881 for the exhibition and sale of cut-glass goods, and that such goods are exhibited to better advantage by artificial light than by ordinary light.” The plaintiff only excepted to this portion of the charge. The jury rendered a verdict of six cents in favor of the plaintiff. Held, that the portion of the charge excepted to was inaccurate because it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, and only those for which they actually were occupied. The plaintiff was entitled to the use of his property for any purpose to which it might be devoted, and for which he was able to rent it; and the fact that he may have been obliged to rent it for a purpose in which artificial light could be used to better advantage does not prevent him from recovering what he might have received if he had been able to rent the premises with the advantages of natural light.
    Defendant consented to withdraw the portion of .the charge excepted to, but no direction was given to the jury to disregard it, nor anything said by the court from which the jury might intelligently infer that it should be disregarded. Held, that the error was not cured; that the fact that the jury rendered a verdict of six cents for the plaintiff, while the proof indicated that the loss was of a more substantial character, showed that the erroneous charge left its impression on the mind of the jury.
    Before Freedman, P. J., and McAdam, J..

      Decided January 11, 1892.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff for six cents damages, and from an order denying a motion for a new trial.

      Arnold & Green, for appellant.

      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for respondents.
   By the Court.—McAdam, J.

The action was brought to recover damages to the rental value of the leasehold premises known as No. 36 Murray Street, in the city of New York, caused by the construction and operation of the elevated railroad in front of said premises. The title to the fee of the land is in Columbia College; but on the 29th day of November, 1870, the trustees of that college executed an instrument by which they leased the land to William EL Scott for the term of twenty-one years. Mr. Scott entered into possession under his lease, and built upon the land the building now standing there, which is five stories high with cellar and sub-cellar. It was finished in 1857 and is 25 feet wide, by about 75 feet deep; it has a marble front and is a fine building, with elevator, etc. It has always been used and occupied for business purposes. Mr. Scott died in the year 1883, leaving a last will and testament which was duly approved as a will of real and personal property, and under this will the plaintiff was named as» executor and trustee, and duly qualified as such.

Upon the trial of the action the court charged the jury that in deciding the question of damages to rental value they should consider it with reference to the purpose for which the premises were occupied and used during said period, and give weight to the undisputed fact that it has been used since 1881 for the exhibition and sale of cut glass goods, and that such goods were exhibited to better advantage by artificial light than by ordinary light.” The plaintiff excepted to this portion of the charge, and the defendants’ counsel consented that it be withdrawn ; but there is nothing in the case indicating that the jury were instructed to disregard it; nor was anything said by the court from which they might intelligently draw that inference.

The charge was inaccurate, for it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, and only those for which they actually were occupied.

The plaintiff was entitled to the use of his property for any purpose to which it might be devoted, and for which he was able to rent it; and the fact that he may have been obliged to rent it for a purpose in which artificial light could be used to better advantage, does not prevent him from recovering what he might have received if he had been able to rent the premises with the advantages of natural light.

Whether the trial judge intended to withdraw this portion of the charge, it is clear from the result that it left its impression on the mind of the jury; for they awarded the plaintiff but six cents damages, while the proof indicates that his loss was of a more substantial character.

As the value of property results wholly from its use, it follows that to deprive the owner of its most advantageous use is a deprivation of property. Indeed all that is beneficial in property arises from its use and the fruits of that use; and whatever deprives a person of them, deprives him of all that is desirable or valuable in the title or possession, and whatever limits or interferes with the most advantageous use of the property does a substantial injury to the title and possession, which is not compensated by nominal damages.

For these reasons, and without considering the other exceptions in the case, it follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to abide the event.

Freedman, P. J., concurred.


text:
    CHARLES ULRICH, Appellant v. EDWARD ULRICH, as Executor, etc., Respondent.

      Parent and child, when this relation may he deemed changed to that of master and servant.

    This action was brought to recover for the work, labor and service of plaintiff and his wife, in taking care of and nursing his aged mother, Barbara Ulrich. The court charged the jury, that if the services were rendered pursuant to the mother’s employment, and on her promise to pay, the plaintiff was entitled to a verdict, otherwise not. The jury found for the defendant.

      Held, that the plaintiff lived with and was supported by his mother during the time for which the compensation is claimed, and the rule is well settled that where it is sought to establish the relation of master and servant between relatives living together, it must be substantially proved that the parties understood the latter relation to .-exist, and to have acted with reference to it; and the mere fact that the services rendered were meritorious and long continued, does not of itself tend to establish that relation. In order to create the relation of master and servant in such a case, there must be unequivocal acts of the parties to establish and prove an agreement. Where there is near relationship between the parties, the alleged promisor and promisee, transactions between them do not give rise to the ordinary presumptions that spring from business dealings between persons who are not of kindred to each other.
    In cases of this character, the law does not imply a promise to pay for service rendered, nor for board and lodging furnished, but will presume they were rendered and furnished gratuitously, and in order to overcome this presumption an express promise to pay must be proved, or satisfactory evidence shown, that will establish the fact or conclusion that the parties expected to pay and be paid, and the agreement of the parties for such payment must be clearly expressed and satisfactorily established by reliable evidence. The question to be determined was one pre-eminently for the jury, and it is not surprising that, under all the facts and circumstances, the jury found for the defendant.
    Before McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.

      Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for .a new trial.
    The action was against the defendant, as the executor of Barbara Ulrich, to recover for the work, labor and services of the plaintiff and his wife, in taking care of and nursing his mother, Barbara Ulrich, in her old age, from March, 1885, down to the time of her death, which occurred October 1, 1889. The answer denied the employment or the rendition of services.
    The court charged the jury, that if the services were rendered pursuant to the mother’s employment, and on her promise to pay, the plaintiff was entitled to a verdict, otherwise not.
    The jury found for the defendant, and from the judgment entered on their verdict and the order denying a motion for a new trial, the plaintiff appeals.

      Nelson Smith, attorney and of counsel, for appellant, argued:—
    I. The plaintiff was entitled to recover for the services of himself and his wife in taking care of the testatrix in her old age, and during the period mentioned- in the complaint. It is now well settled under the statute that the husband is entitled to the services of his wife, performed in connection with his own services, while they are living together as husband and wife, and in taking care of an old or sick person, Reynolds v. Robinson, 64 N. Y., 589; Bean v. Kiah, 4 Hun, 17; Cuck v. Quackenbush, 13 Ib., 107; Filer v. N. Y. C. & H. R. R. Co., 49 N. Y., 47. The case of Reynolds v. Robinson, supra, is precisely in point. There the plaintiff’s wife was not engaged in any business or service on her own account. The service she rendered was rendered for her husband in taking care of the deceased, and she did the services as part of her household duties, she and her husband acting together in performing them.
    II. The verdict was not only against the evidence, but was in total disregard of it. The plaintiff established his employment by the testatrix by the testimony of six witnesses, five of whom were wholly disinterested, namely, Henry Krauss, Ann Mary Ofct, Katie Freseher, Margaret Fest, and Albert Fest. The plaintiff proved the value of the services rendered by four witnesses, namely, Emilie Gail, Sarah Neubauer, Josephine Miller, and Lizzie Schnitzer, who were shown to be competent to testify upon the subject of value and were disinterested.
    III. The testatrix, being of sound mind, had the right to contract with the plaintiff for the services of himself and wife in taking care of her household and in taking care of her, irrespective of her physical condition, and would be liable for the services for which she promised to pay.
    IV. The court erred in charging the jury that the presumption of law was against such a claim as advanced in this action, and the exception thereto was well taken. There is no presumption of law against any valid claim, nor against any valid defence. McQueen v. Babcock, 3 Abb. Ct. of App. Dec., 132; Barrett v. Meyer, 10 Hun, 109, 110; Bank v. Gifford, 40 Barb., 659; Union Bank v. Bassett, 3 Abb. N. S., 359; Grant v. McLachlin, 4 How., 216. The principle of these cases is in point. Formerly there was a prejudice against the defence of usury, and the court would not open a default to allow it to be set up, nor permit an amendment for a like purpose, but the prejudice prevailing against legal claims or legal defenses has gradually given way to more enlightened views, and all legal rights now stand upon the same footing. All that the law presumes is that where there is no contract for services there can be no recovery. But that rule can have no application to this case, because here the plaintiff had been employed to remain with his mother and take care of,her, and she had promised to pay him, and the ruling of the court that the law raised a presumption against his claim stands out distinctly and clearly as erroneous. If any claim is entitled more than another to the favor of the law, it is one to recover wages. Wages are the fruit of labor, and the fruit of labor is given to every person in virtue of the right to live ; for if the fruit of labor were snatched from the workman before he could apply it to his use, starvation would ensue, and life would end. Hence, the right to the fruit of labor stands upon the same sacred ground as the right to live. And the right to live is the highest right conferred upon mortal man by his Creator.
    Y. The court erred in charging the jury that children were bound to care for their parents in their old age, and the exception thereto was well taken. Such a remark by the court only misled the jury. It could have no application to this case. Here the testatrix, it is true, was the plaintiff’s mother, but she was a wealthy woman—owned the house where she lived. By the provisions of her will, which was dated June 15, 1885, she gave her property to several children. The statute which required the father, mother or children, who are of sufficient ability, of any poor person who is blind, old, lame, impotent or decrepit, so as to be unable by work to maintain himself, to maintain him (Part First, chap. XX., title 1, 4th ed., R. 8. [Gould and Banks], pp. 8-11, §§ 1-13), was repealed by chap. 593 of the Laws of 1886, § 1, paragraph 5, p. 829. The charge of the court increased the already highly inflated prejudice in the minds of the jury. The statute upon that subject remaining unrepealed will be found in 3 R. S., 8th (Banks) ed., p. 2106; and § 14 requires every poor person, unable by his work to maintain himself, to be supported by the county or town in which he may be.

      Edward P. Orrell, attorney, and Edward W. S. Johnston of counsel, for respondent, argued:—
    I. In this case plaintiff had resided with his father and mother, had not supported himself for many years ; he was living with his parents at the time of his father’s death, being supported by his father together with his wife and three children. He claims that after the father’s death the mother was so feeble she was unable to take care of herself, and although the other son, Edward, with his children, were living in the same house, that the mother said she must have the plaintiff and his wife to take care of her in her old age, as she was helpless, and told them if they would stay there she would pay them ; in other words, that the plaintiff and his wife should continue to do what they were doing, and that the testatrix would pay them for it; and this evidence on the part of the defendant shows that in no way were they doing anything for the old lady, in fact, were being supported by her, clothed, lodged and fed, and such testimony offered by the defendant goes clearly to prove that the testatrix was in no need of any services on the part of the plaintiff’s wife; that she was a strong, hale, and hearty old woman. The plaintiff claims that after these declarations on the part of the testatrix he can recover on a quantum meruit. The finding of the jury in favor of the defendant must necessarily be taken as a finding that no services were rendered by plaintiff to the defendant’s testatrix, and that no such agreement as testified to was ever made.
    II. Passing over the question of the irregularity of the order denying the plaintiff’s motion for a new trial, we come to the question as to whether the verdict was contrary to or against the weight of evidence. On this question we heg the attention of the court to the fact that the plaintiff does not ask for the direction of a verdict in his favor. By omitting to do so he is precluded from alleging that the verdict is either contrary to or against the weight of evidence. This court applied this rule at general term in Sickels v. Gillies, 45 How., 94, and also in Hamilton v. The Third Avenue R. R. Co., 31 N. Y. Supr. Ct. Reps., 118, and in Rowe v. Stevens, 34 Ib., 436. In Peake v. Bell, 7 Hun, 454, it is stated that a new trial cannot be had, because the verdict is against the evidence, unless the party moved for a verdict. In Sheehy v. Cannon, 17 N. Y. Wkly. Dig., 159, the court says : “ Plaintiff having made no motion for the direction of a verdict in his favor nor excepted to the submission of the facts to the decision of the jury upon the ground that a case has not been made out, he cannot be heard to make an objection to the sufficiency of the evidence to sustain the verdict.” The case of Eowe v. Stevens, supra, the court says : “ A motion for a new trial on the minutes will not be granted on the ground that the verdict is without evidence or insufficiently supported by evidence, where a party has not, when there is a conflict of evidence on the facts, moved for the direction in his favor.” In Hanck v. Stephenson, 40 N. Y. Super. Ct. Reps., 543, the court says : “ That a verdict on conflicting evidence will not be disturbed, because the jury had the advantage of seeing the manner and appearance of the witnesses.” In Cheney v. The N. Y. Cent., 16 Hun, 415, the court says : “ Preponderance of evidence to be sufficient must be overwhelming.” And when we consider the fact that the evidence for the plaintiff, as to this alleged contract, consists solely of the evidence of his wife, which, even if not contradicted, the jury were at liberty to disbelieve, Koehler v. Ahler, 78 N. Y., 287, and that the defendants clearly showed that the testatrix was not in a condition requiring" any services, that she was well able to take care of herself and did so, and in fact performed a great portion of the work of this flat occupied by plaintiff and his family with her, and spent most of her time taking care of his numerous offspring, and that she was a bright, active woman, requiring no attendance or service, when we consider the fact that when the will was made, which will gives to each child an equal share among the five children, of which the plaintiff was one, and that at this time the plaintiff was asked if he was satisfied, and replied that he was, the fact of his surprise at getting what he did, that when, at the time of the reading of the will, the question was asked, if there was any claims against or debts owing by the testatrix to anybody and he refrained from putting forward any claim and sat by in silence without asserting his supposed rights, if .any, and when he was sought to be charged with the rent of this floor in which he had been living after his mother’s death, and he agreed to pay the sum of $20 a month for the same at that time, and when the heirs came together and had a settlement of the accounts of the executor who had been collecting the rents of the property and paying out the disbursements on the property, he had signed the accounts with the others expressing himself satisfied therewith ; and at neither of which times did he put forth any claim, we must be forced to the conclusion that the evidence fully sustains the verdict, and in fact as the court said in Ross v. Ross, 6 Hun, 184, speaking of a case like the one at bar, “It would be difficult to see how the jury could find otherwise than they did.” In Cohu v. Husson, 23 N. Y. St. Rep., 504, the Court of Appeals says : “ Silence when one ought to speak is frequently as significant as an express admission; and if any one is called upon to pay a certain sum claimed to be due on intestate’s estate, or a claim or counterclaim for any sum, the jury has a right to take into account this silence on his part, and this furnishes some evidence that his counterclaim was never a valid claim against the estate.”
   By the Court.—McAdam, J.

The plaintiff lived with and was supported by his mother during the time for which compensation is claimed, and the rule is settled that where it is sought to establish the relation of master and servant between relatives living together, it must be proved that the parties understood the latter relation to exist, and acted with reference to it, and the mere fact that the services rendered were meritorious and long continued does not of itself tend to establish the relation. In order to create the relation of master and servant in such a case there must be unequivocal acts proving an agreement.

“ The duties of children to their parents,” says Blackstone, “arise from a principle of natural justice and retribution. For to those who gave us existence we naturally owe subjection and obedience during our minority, and honor and reverence ever after ; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age ; they who by sustenance and education have enabled their offspring to prosper, Ought in return to be supported by that offspring in case they stand in need of assistance.” 1 Bl. Com., 453. This expresses the moral rather than the legal obligation of the child, for at common law children were not bound to support their parents, yet the sentiment expressed by Blackstone is so just that statutes have been passed under which children may be compelled to support indigent parents, Code Crim. Pro., § 914, and thus by force of positive enactments, the principle stated by that learned jurist is practically the law of the land to-day. Where there is near' relationship between the alleged promisor and promisee, transactions between them do not give rise to the ordinary presumptions that spring from business dealings. Collyer v. Collyer, 113 N. Y., 448. Indeed, in cases of this character, the law does not imply a promise to pay for services rendered or for board and lodging furnished, but will presume that they were rendered and furnished gratuitously, and in order to overcome this presumption, there must be an express promise to pay proved, or satisfactory evidence showing that the parties expected to pay and be paid. Lyon v. Smith, 35 Hun, 275; Roblee v. Gallentine, 19 Week Dig., 153; Carpenter v. Weller, 15 Hun, 134; Updike v. Titus, 13 N. J. Eq., 152; Hall v. Finch, 19 Wisc., 278; Andrus v. Foster, 17 Vt., 560; Fitch v. Peckham, 16 Ib., 150; Ayres v. Hull, 5 Kan., 419; Greenwell v. Greenwell, 28 Ib., 675; Ulrich v. Arnold, 120 Pa. St., 170; Houck’s Executors, 89, Ib., 552; Lynn v. Lynn, 29 Ib., 369; Hertzog v. Hertzog, Ib., 468.

The agreement should be clearly expressed or satisfactorily established by reliable evidence. Spraker v. Dow, 16 State R., 297; Gaylord v. Gaylord, 7 Ib., 703; Shakespeare v. Markham, 10 Hun, 311; aff'd 72 N. Y., 400; Keller v. Stuck, 4 Redf., 294. In Ulrich v. Arnold, 120 Penn. St. R., 170, the court went as far as to say: “ Mere loose and rambling declarations of an aged and infirm parent expressing gratitude for the services of a child during a period of illness and of suffering, services which all right-minded children willingly render to their suffering parents without hope of reward, or expressing a presumption that payment will be made for them, or the hope that compensation should be rendered after death, are not a contract nor the evidence of one between persons thus related. It is at best but an ill-judged and misplaced impression which prompts juries to dignify such declarations and expressions with the qualities of a positive and express contract. It is in derogation of our common humanity, and of the best interests of our race, and ought not to be encouraged by a tribunal which administers justice. If in any given case a child expects to be paid for filial services to an infirm parent let him or her conform to the law and enter into a specific and definite contract with the parent during the parent’s life, fixing the character of the services, and determine positively the fact that compensation is to be made for it. When this is done the courts will see that the contract is enforced; when it is not done claims for such services, when presented as legal obligations, do not deserve the slightest consideration.”

The plaintiff received the same bounty under his mother’s will that the other- children obtained. He made no claim for compensation during her lifetime. Claims thus withheld during the lifetime of an alleged debtor, and sought to be enforced after death, are to be carefully scrutinized and only admitted upon satisfactory proof. Kearney v. McKeon, 85 N. Y., 137; Havens v. Havens, 21 State R., 958; Ross v. Ross, 6 Hun, 184; Moore v. Moore, 3 Abb. Ct. App. Dec., 303, as they have every intendment and presumption against them. Koecker’s Executors, 47 L. I. Pa., 505. In view of these authorities, it cannot be seriously claimed that the case was not fairly submitted to the jury, or that the learned trial judge committed the slightest error in his charge. The facts were seemingly against the plaintiff’s contention, and the issues had to go to the jury for their determination. At the conclusion of the evidence, it was a question about which minds might differ, as to whether the plaintiff had overcome the presumptions against his right of recovery, and whether his proofs were satisfactory.

The plaintiff is undoubtedly correct in claiming that when a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable, or in conflict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury, Kavanagh v. Wilson, 70 N. Y., 177, but the witnesses in this instance testified only to conversations overheard and admissions made, a dangerous species of evidence at best; for such declarations are apt to be misunderstood and misinterpreted, particularly when made by an aged and infirm woman, who has already made provision in her will for the benefit of the person in whose favor the alleged admissions were made.

Inferences were to he drawn from the relations of the parties and the surrounding circumstances. The conversations were to be construed with reference to them, that the intent of the parties might be arrived at, and it may well be that the mother in speaking of compensation, may have had in mind the provisions of her will, in and by which the plaintiff received his full share of all her worldly goods. There was such a strong degree of improbability against the propriety of the claim made, that the question to be determined was one pre-eminently for the jury (a subject easier to settle in a particular instance than by generalization), nor is it surprising, in view of the circumstances, that the jury found in favor of the defendant. No error was committed and no injustice done. It follows that the judgment and order appealed from must be affirmed, with costs.

Gildersleeve, J., concurred.


text:
    GEORGE W. HUTTON, et al., Respondents v. CAROLINE M. S. WEBBER, Appellant.

      Action to compel the specific performance of a contract whereby defendant agreed to purchase certain real estate.

    In this case there appears to have heen only one deed in the chain of title to which objection was made. This was a deed from William Wolf and wife to August Konow. The loss of the original deed was proved, and the record of the same was proved, and from this the deed appears to be correct in form and substance, but in the record of the acknowledgment the words “to me known" to be the individuals described in and who executed the instrument, do not appear, and if in the original deed are omitted in the record. The notary who took the original acknowledgment, testified that he knew the grantors personally; that he saw them execute the deed, knew them to be the persons described therein, and that they properly executed and acknowledged the same. The notary was also the witness to the execution of the deed.

      Held, that this deed was effectual to pass title without being recorded. It was good between the parties to it, and only subsequent purchasers or incumbrancers for value and without notice, can take objection to it, and there being no such persons to make such objection in this case this deed effectually conveyed every interest the grantors had in the property to the grantees therein, therefore the title tendered was good and the defendant was properly ordered to accept it. That the defect alleged may lead to a future controversy over the title to the property, is such a Very remote and improbable contingency and is only such a slender possibility, that it is a proper case for the application of the principle upon which the court below declined to relieve the purchaser.
    Before McAdam and Gildersleeve, JJ.

      Decided January 11, 1882.
    Appeal by defendant from a judgment of the special. term, requiring said defendant to specifically perform a contract for the purchase of certain real estate, to accept the deed, and pay $21,400 the balance of the purchase money.

      Edward Grosse, attorney, and Henry Wehle of counsel, for appellant, argued:—
    I. The deed from William Wolf to August Konow was not properly proven, and it was error to admit the same in evidence. The statute of this state is imperative that no acknowledgment of a conveyance shall be taken by an officer, unless he knows or has satisfactory evidence that the person making the acknowledgment is “ the individual described in and who executed such conveyance.” Rev. Stat., part 2, chap. 3, § 9. And the officer is required to endorse a certificate on the conveyance which must set forth this fact, lb., § 15. A conveyance thus acknowledged is entitled be to recorded. lb., § 16. The record of such a conveyance may be read in evidence. Ib., § 17. This statute has been construed by the courts of this state. The language of the statute need not be followed, but a substantial compliance is necessary. Trustees of Ontario Female Seminary, 19 Hun, 62. A deed cannot be read in evidence from the record unless that shows that it was acknowledged as required by law. Morris v. Keyes, 1 Hill, 540; Clark v. Nuxon, 5 Ib., 36. “ An assignment for the benefit of creditors is not valid, if not duly acknowledged and recorded. If it be not duly acknowledged, the recording goes for nothing; it is not recorded. In determining the validity of the recording of a conveyance, it is the certificate of the officer who takes the acknowledgment that must be considered, for unless the acknowledgment be certified in the manner prescribed by the statute, the instrument is not entitled to be recorded. The manner of certifying an acknowledgment is for the officer who takes it to endorse upon the conveyance a certificate of the acknowledgment, wherein he shall set forth the matters required by the statute to be done, known or proven on such acknowledgment. The officer must know or have satisfactory evidence that the person making the acknowledgment is the individual described in and who executed such conveyance. According to the 35th section of the statute such knowledge shall be set forth in the certificate. There is an utter absence of certification by the officer of matter required to be certified. It may be a clerical error merely, but the matters are not in the certificate, and without them the certificate is not in the manner required by the statute, and the conveyance was not entitled to be recorded.” Smith v. Boyd, 10 Daly, 149. This decision was reversed in 101 N. Y., 472, because it was held that it could be gathered from the context of the certificate that the statute has been complied with, but the rule as to the necessity of compliance with the statute, as laid down by the court below, was not questioned. A certificate of acknowledgment of a deed, made after the adoption of that portion of the Revised Statutes relating to proof and recording of deeds, which simply describes the persons acknowledging as ‘ grantors of the within indenture,’ without stating that they were known to the officer to be the same persons who are described in and who executed it, as prescribed by said statute, is insufficient to entitle the deed to be recorded. Fryer v. Rockefeller, 63 N. Y., 268; Cabell v. Grubb, 43 Miss., 353. Irving v. Campbell, 121 N. Y., 353, was an action for specific performance of contract. As evidence of the conveyance, plaintiff produced a certified copy of the record of a deed dated in 1871, about sixteen years before the time fixed for the performance of the contract, purporting to have been executed by L. and acknowledged and proved by T., a subscribing witness. The certificate of acknowledgment did not state the place of residence of the subscribing witness. It was proved by parol that the deed was actually made and delivered, but that it had been lost. Held, that the acknowledgment did not authorize the deed to be recorded or the certified copy to he read in evidence, and that although it appeared that the subscribing witness was one whose person and place of residence were well known, the title tendered was not such as defendant was bound to accept. In the same case the court says: “ It is not necessary that this certificate should be expressed in the exact language of the statute, or according to any precise form, but in respect to its substantial provisions it is indispensable that they should in some way be contained in it and convey to all persons knowledge of the required information. We find no authorities holding that a material provision of the statute, expressly required to be stated, can be wholly disregarded and a deed thus acknowledged lawfully admitted to record. That a deed improperly recorded cannot he read in evidence has been determined in numerous cases.” The same subject has been adjudicated in the courts of other states. The rule is general that an instrument cannot be read in evidence from the record, if it was recorded without compliance with the statute as to acknowledgment. See Fox v. Lambson, 3 Hal., 281; Tully v. Davis, 30 Ill., 103.
    II. The oral testimony does not render the conveyance admissible. The plaintiff, to supply the defect in the certificate, proved that William Wolf was known to the notary as the grantor on the conveyance, but this fact is immaterial. To make even the original conveyance admissible in evidence the certificate would have to state that the person who acknowledged the conveyance was known to the notary as the grantor. Rev. St., part 2, chap. 3, § 16. And as the witness did not testify that the certificate contained this statement his testimony was nugatory. Hayoau v. Westcost, 11 Com., 129.
    III. Plaintiff’s title was defective. The record of the deed without a proper acknowledgment is not constructive notice to the world, and any person who has acquired an interest in the property from William Wolf, without knowledge of the sale from Wolf to Konow, could assert against the holder of the property. William Wolf had it in his power to incumber the title by conveyances to innocent parties, until plaintiff’s rights have ripened into a good title through adverse possession. Not having been made a party to the foreclosure suit, his equity of redemption—as far as innocent purchasers are concerned —would still exist.
    IV. The title was one which no prudent man would accept and which the court should require defendant to accept. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending upon a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication, and could raise the question in a new proceeding. The cloud upon the purchaser’s title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have. Fleming v. Burnham, 100 N. Y., 1. But is a purchaser bound to take a title which lie can defend only by a resort to parol evidence which time, death or some other casualty may place beyond his reach ? * * * It is familiar law that an agreement to make a good title is always implied in executory contracts for the sale of lands and that a purchaser is never bound to accept a defective title unless he expressly stipulates to take such title, knowing its defects. His right to an indisputable title, free from all defects and incumbrances, does not depend upon the agreement between the parties, but is given by the law. * * * Within the meaning of this rule, at least, according to the decisions in this state, a good title means not merely a title valid in fact, but a marketable title, which can again be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence as security for the loan of money. A purchaser will not generally be compelled to take a title which can be cured only by a resort to parol evidence. Moore v. Williams, 115 N. Y., 586; Methodist Episcopal Church v. Thompson, 108 Ib., 618. “ A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some fact appearing in the course of its deduction, and the doubt must be such as affects the value of the land or will interfere with its sale. A purchaser is not compelled to take property, the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb the market value.” Vought v. Williams, 120 N. Y., 253; Moore v. Appleby, 108 Ib., 241.

      Thomas Nelson, attorney and of counsel, for respondents, argued:—
    I. By the deed of 31st August, 1870, made by William Wolf and wife to August Konow, the title of the premises passed to Konow. The certificate of acknowledgment was not necessary to the completeness of the deed for the purposes of passing the title. The deed was subscribed and sealed by William Wolf, and its execution and delivery was attested by August Hassey, as a subscribing witness. This made it a good deed, and passed the title, 1 R. S., p. 689, Edmond ed., § 137; Wood v. Chopin, 13 N. Y., 514. The proofs show a good execution and acknowledgment. The objection of the defendant proceeds upon the theory that a defective certificate of acknowledgment invalidates the title. As a proposition of law this is untenable.
    II. The case does not involve the question whether or no the deed from Wolf to Konow was entitled to he recorded under the recording acts, but solely whether or no it was sufficient to pass the title of Wolf. On the principle that it must be intended that every officer has done his duty, it should be presumed that the notary put in his certificate of acknowledgment the proper-words, and that the register found them there, so that he was justified in recording the instrument. And that if the record does not show the words, the court will rather infer that it was a clerical omission of the copyist in the recording office than that both the notary and the register have failed in their respective duties. But it is not necessary to consider that question. The sole question involved is that of title alone, and that depends upon the question, whether or no by the deed made by Wolf and wife to Konow, all the interest in the property that Wm. Wolf had passed to Konow. It is claimed by the plaintiffs that whether recorded or not, by that deed Konow acquired all of Wolf’s interest. It must be borne in mind that in every change of title the purchaser took possession, and the premises were held in consonance with the deeds of conveyance made. No claim of any interest in the property is made by Wolf, or any one under him, nor by any other person as against the plaintiffs.
    III. The question whether or no the record, standing alone, would be sufficient evidence of the conveyance by the Wolfs to Konow does not arise. The evidence shows that the deed itself is lost, but it was put on record by the subscribing witness. That record, in connection with the proof that the deed is lost, and the other testimony, was 'used to show the contents of the lost deed, and for that purpose it cannot be doubted it was properly received.
    IY. The case shows no incumbrance on the property, no defect of title, no adverse claim in any way. The defence in this action proceeds upon the theory that, as matter of law, before a purchaser is bound to take real estate he has contracted to purchase, all the deeds in the chain of the title thereof must either be, or be capable of being, properly recorded ; and that if to establish his title the purchaser will have to resort to parol evidence to supply a defect appearing on the record in the certificate of acknowledgment of a deed given years back; and which deed is one of the links in a chain of title, to which title no hostile claim is or ever has been made, then he has a right to reject such a title. It is insisted that such is not the doctrine in a case where the facts exist as they do here. Parol evidence is frequently necessary to show title in persons who acquire by descent, and in other cases that need not be specified.
    V. The trial of the action took place November 6,1890, more than twenty years after Wolf’s deed to Konow; and thereby title had been acquired by adverse possession. Any harm from the alleged defect, at best, was a remote and improbable contingency. In such a case court compels purchaser to complete. Cambrelling v. Parton, 125 N. Y., 616.
   By the Court.—McAdam, J.

The sole objection to the title arises upon the deed from William Wolf and wife to August Konow, executed by the grantors September 1, 1870. The deed is correct in every respect, excepting that in the record thereof, the words in the acknowledgment to me known ” to be the individuals described in and who executed the instrument, are omitted. The loss of the original deed was proved, and the notary testified that he knew the grantors personally, that he saw them execute the deed, knew them to be the persons described therein, and that they properly executed and acknowledged the same. The deed was witnessed by the notary, and avrs effectual to pass title Avithout being acknowledged. 1 Edm. R. S. p., 689, § 137; Wood v. Chapin, 13 N. Y., 509. Such a deed is good between the parties to it, and only subsequent purchasers or incumbrancers, for value and without notice, can take objection to it. There are no such persons to make objection here, and the deed effectually conveyed every interest the grantors had in the property. It follows, therefore, that the title tendered Avas good and the defendant properly ordered to take. The deed was executed and delivered more than twenty years ago, and the grantee and those claiming under him have been in undisturbed possession of the property ever since. That the defect alleged may lead to controversy is such a very remote and improbable contingency, and is such a slender possibility only, that it is a proper case for the application of the principle upon which the court declined to relieve the purchaser. Cambrelling v. Barton, 125 N. Y., 616.

In Moser, Exr., v. Cochrane, 107 N. Y., 41, citing Schermerhorn v. Niblo, 2 Bosw., 161, the court of appeals said: As the law does not regard trifles, the bare possibility that the title may be affected by the existing causes which may subsequently be developed, when the highest evidence of which the nature of the case admits, amounting’ to a moral certainty, is given, that no such cause exists, will not be regarded as sufficient ground for declining to compel a purchaser to perform his contract.”

In Hellreigel v. Manning, 97 N. Y., 56, it was held that nothing but a reasonable doubt will excuse the vendee from taking title, and that defects in the record title may be cured or removed by parol evidence, and the same case also holds that there is no inflexible ride that a vendor must furnish a perfect record or proper title. The defect is not such as renders the land unmarketable, and the court was right in directing a specific performance of the contract. Judgment affirmed, with costs.

Gildersleeve, J., concurred.


text:
    PROSPER MONNET, et al., Appellants v. HENRY MERZ, as Survivor, Etc., Respondent.

      Motion to dismiss appeal—Whenparty who has recovered and collected a judgment not estopped from appealing therefrom.

    Where the plaintiffs prosecute an appeal from the judgment for the purpose of modifying it so as to increase the amount of recovery until it equalizes their demand, the fact that the judgment upon the appeal of the defendant has been modified and affirmed, and the amount thereof paid to the plaintiffs, does not constitute a waiver of their right of appeal, in a case where the judgment rendered was founded on items separate and distinct from those which constitute the basis of the plaintiffs’ contention on appeal.

      It seems that a party seeking to set aside a judgment in toto waives his appeal by collecting the amoirnt of the judgment, because the right to proceed on the judgment and enjoy its fruits and the right of ajDpeal are not concurrent but wholly inconsistent. An election to take one of these courses is a renunciation of the other.

      Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Motion by defendant to dismiss the plaintiff’s appeal.
    The action was brought by plaintiffs as manufacturers in Switzerland against the defendants, their commission agents in this city, to recover $18,958.40. The defendants set up various defences and counterclaims. The action was referred and the referee awarded the plaintiffs $10,130.45, with interest, aggregating $12,-276.29. In arriving at the sum due, the referee disallowed portions of the plaintiffs’ demand and modified some of their charges. The plaintiffs entered judgment on the report, February 27, 1888. The defendants appealed to the general term, where after argument, the judgment was affirmed and the plaintiffs entered the judgment of affirmance, July 2, 1889. The defendants then appealed to the Court of Appeals, which court on June 2, 1891, made an order allowing a small deduction from the judgment, but substantially affirming it, and on June 18, 1891, the judgment as modified, with all costs and interest was fully paid. On June 8, 1891, the plaintiffs appealed from the judgment, for the purpose of reviewing the action of the referee, in reducing the plaintiffs’ demand from $18,958.40 to $19,276.29.
    The defendants moved to dismiss the appeal.

      A. P. & W. Man, attorneys for respondent, for motion.

      Arnoux, Ritch & Woodford, attorneys for appellants, opposed.
   By the Court.—McAdam, J.

As a rule, there can be but one judgment in an action, Johnson v. Farrell, 10 Abb., 334; Canfield v. Gaylord, 12 Wend., 236; Webb v. Bulger, 4 Hill, 588. The referee having reduced the plaintiffs’ demand from $18,958.40 to $10,276.29, either party aggrieved had the right to appeal (Code, § 1294), the defendants because they thought the sum awarded excessive, and the plaintiffs because they thought it inadequate. To appeal, it was necessary that judgment be entered, and this preliminary step was taken by the plaintiffs. The defendants appealed to the general term and then to the Court of Appeals, and the judgment against them in a modified form was affirmed. The judgment was paid by the defendants, but, in any event, they were obliged to pay the money, and its acceptance stopped the running of interest, but did not disable the plaintiffs from appealing from so much of the judgment directed by the referee as reduced their demand. Dyett v. Pendleton, 8 Cow, 325; Clowes v. Dickenson, Ib., 331; Higbie v. Wrestlake, 14 N. Y., 281; McNamara v. Canada S. Co., 16 Week. Dig, 86; Benkard y. Babcock, 2 Robt., 175; S. C. 17 Abb., 421; Barker v. White, 55 N. Y., 204; Hayer v. Noise, 107 Ib., 578; In re Water Comr’s, 36 Hun, 534. If a party seeks to set aside a judgment in toto after he has collected the amount by execution, the collection of the judgment is a waiver of the appeal, (Knapp v. Brown, 48 N. Y., 209), for the reason that “ the right to proceed on the judgment and enjoy its fruits, and the right of appeal, are not concurrent; on the contrary wholly inconsistent. An election to take one of these courses, is, therefore, a renunciation of the other.” Bennett v. Van Syckel, 18 N. Y., 484. But, if he prosecuted his appeal, merely for the purpose of modifying the judgment so as to increase the amount of his recovery to equal the demand, it is not a waiver. Knapp v. Brown, supra; Genet v. Davenport, 60 N. Y., 194. Some judgments may be so connected and dependent upon one another, that if cross appeals are taken they must be pursued pari passu, that there may be one record, one adjudication and one satisfaction, to avoid double hearings and the splitting of appeals which, like the splitting of causes of action is not approved. But the judgment directed by the referee in this instance is not so connected or dependent as it is founded on separate and distinct items. It was neither claimed nor proved that the plaintiffs’ time to appeal had expired, and we assume therefore that it has not. This being so, we cannot deprive them of a right which the statute expressly confers. For these reasons, the motion to dismiss the appeal must be denied, with ten- dollars costs.

Freedman, P. J., and Gildersleeve, J., concurred.


author: By the Court.—Gildersleeve, J.

text:
    ROBERT W. MILBANK, Respondent v. MORGAN JONES, Appellant.

      Motion to be allowed to amend the answer after a like motion had been made to the court and denied and no appeal taken from the order.

    In this case, the defendant being in default, his attorney entered into a stipulation, by which the default was waived without the payment of costs, on condition that defendant should not interpose any defence except a general denial. Afterwards, the defendant, who claimed that such stipulation was made without his knowledge or consent, changed his attorneys and moved to setasidetliis stipulation andfor leave to serve an amended answer, setting up in addition to the general denial, the statute of limitations, and an allegation that the agreement of trust mentioned in the complaint, was void as against public policy. This motion was denied, and an order was duly entered denying said motion April 9, 1888, and from that order no appeal was ever taken. The case was tried in November, 1888, and resulted in a verdict for defendant, and on an appeal taken from the judgment, by plaintiff, it was affirmed at general term, and thereupon plaintiff appealed to the Court of Appeals where the judgment was reversed and a new trial granted on the ground of error in the admission of defendant’s testimony, in regard to the illegality of the contract and trust under an answer containing merely a general denial; the cause was thereupon placed on the calendar for trial, and noticed for the October Term, 1891. In September, 1891, the defendant made a second motion to set aside the stipulation aforesaid and for leave to serve an amended answer on substantially the same grounds and state of facts as appeared in the first motion. This second motion was also denied, and from the order so denying the motion of defendant he appeals to the general term.

      Held, that the defendant is guilty of laches. He should have appealed • from the order denying his first motion. The court has power to set . aside or modify such stipulations .as the one in question, nor will it be disputed that the defendant has suffered injury by reason of the stipulation made by his attorney. In view of the conflict of evidence on the question of defendant’s knowledge and approval of the act of his attorney in making the stipulation, and in consideration of the laches of defendant, this is not a ease in which the court should interfere and set aside a stipulation made by the attorneys for the respective parties, by which one gave up a right in return for the waiver of a right by the other.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from an order denying a motion of defendant to set aside a stipulation, and for leave to amend the answer.

      John M. Jones, attorney, and Joseph Fettretch of counsel, for appellant, argued :—
    I. Defendant did not know of the fact that he was in default, nor of the making of the stipulation by his attorneys until informed thereof by his son in December, 1887. This appears from his own affidavits and those of his son above referred to. The defendant’s former attorneys do not attempt to controvert this statement of the defendant. ,
    II. Defendant never authorized the making of any stipulation, nor does his former attorney or either of them, claim that he did.
    III. Judge O’Gorman, who originally heard the motion, was under the idea that the stipulation was within the general powers of an attorney, and this was evidently a controlling feature of his decision.
    IV. The defendant submits that he has not been guilty of any laches. He first learned of the making of the stipulation in December, 1887, and it would have been idle for him to have requested his then attorneys, S. A. & D. J. Noyes, to make an application to serve an amended answer, in view of the fact that they had, in cold blood, stipulated away any right to ever serve, or ask for leave to serve an answer containing anything but a general denial, (a.) The delay in procuring the substitution was not the fault of the defendant. (5.) D. J. Noyes of the firm of attorneys for defendant, who had charge of the case, had gone to Europe in January, 1888, and did not return until near the 1st of March, and his brother, S. A. Noyes, the other member of the firm, declined to do anything, on the ground that he knew nothing whatever of the matter, (c.) The defendant procured an order of substitution of attorneys on the 9th of March, as soon after D. J. Noyes’s return as possible, and the substituted attorney prepared the papers and procured an order to show cause, dated the sixteenth day of March, 1888, which, after adjournments for the purpose of getting affidavits, was heard, and the matter decided, on the 6th of April, 1888. (d.) In view of the fact that the defendant never knew of the stipulation until December, 1887, nor of its real contents and sweeping character until March, 1888, and of the fact of his inability to obtain a substitution of attorneys until March, 1888, and of the fact of his making the motion for leave to amend his answer within seven days after procuring the substitution of attorneys, no charge of laches can be made against him in making the motion. (e.) Judge O’GormajST, who heard the motion originally, evidently misunderstood the facts when in his opinion denying the. motion, he speaks of the long delay which had occurred between the service of the original answer and the time of the making of the motion. (/".) This delay was in no wise chargeable to the defendant. He made the motion as soon as it could be made after he learned the facts, (g.) Had the defendant known of the stipulation, and waited a year and a half, which, evidently, Judge O’Gorman, thought he had (overlooking the fact that nobody claimed that the defendant knew of any stipulation until December, 1887, or of its sweeping character until March, 1888), his remarks on the defendant’s delay would have been appropriate. Evidently, he either overlooked or misapprehended the undisputed facts on this subject as they appeared before him. (7i.) The period of time which has elapsed since the original motion was made and the present time are not chargeable against the defendant, he having succeeded on the trial, and the time having been consumed in the táking and prosecuting of the plaintiff’s appeals to the general term of this court and to the Court of Appeals.
    , V. The assumption of Justice O’Gorman, that the defendant suffered no injury by reason of the stipulation, can only be explained or justified by keeping in view his opinion, subsequently given at, and conduct on, the trial, as to what evidence was admissible under the general issue. On the trial, after lengthy discussion, and after his decision at special term denying motion had been brought before him and offered in evidence, he held that evidence of illegality of consideration was admissible, and admitted it. This would be an explanation of his remarks as to defendants not being injured, (a.) The Court of Appeals having reversed the judgment, on the ground that Justice O’Gorman erred, then the defendant was injured, and, in view of the decision of the Court of Appeals, the defendant was injured by the stipulation, and counsel believe that if Judge O’Gorman were still justice he would so hold and grant a motion to set aside, and for leave to serve an amended answer.
      (b.) It does not need any argument to show that a stipulation made without defendant’s knowledge or consent, which bars out the three defences set up in defendant’s proposed amended answer, injures a defendant and practically denies him justice.
    VI. We will now proceed to examine the authorities as to the power, right and duty of the court in the matter of enforcing or setting aside stipulations made by attorneys during the course and progress of an action. In The People v. The Mayor, 11 Abb. Pr. Reports, the court, on pages 72 and 73, state various matters in which an attorney exceeds his authority, and on page 74 the court says: “The court has the power, without doubt, in case of fraud or mistake, to relieve a party from the effects of an agreement.” And in affirming the words of Judge Mullen in ■ Sharp v. The Mayor, quote his language, to wit: “The recent, and in my opinion, the more just, practice, is for the court to relieve the client without reference to the responsibility of the attorney where a proper case for granting relief is established. There is no justice in permitting one party to obtain an undue advantage over another through the neglect or misconduct of the other party’s attorney. Courts of law are not to be used by parties in perfecting through the forms of law the ruin of a party who has employed a negligent or unworthy attorney.” * * * Other cases cited as follows: Quinn v. Lloyd, 7 Robt., 540; Galliard v. Smart, 6 Con., 388; Shaw v. Kiddes, 2 How., 246; Howe v. Lawrence, 22 N. J. Law Rep., 99.
    VII. It will be suggested that no appeal was taken from the original order made by Judge O’Gorman. Defendant submits that this is not of the slightest importance, for Judge Dugro allowed the motion to be reargued, and after reargument denied tifié motion. The appeal from his order brings up the whole matter, both under his order and Judge O’Gorman’s order, and if the motion should have heen granted either on the original hearing, before Judge O’Gorman, or on the rehearing and reargument before Judge Dugro, then the order should be reversed, and defendant have an order setting aside the stipulation and granting leave to serve an amended answer. It is but fair to say that on the rehearing before Judge Dugro, he stated that had the matter been heard by him originally, he would have granted it at least in part, but that he felt it would be improper to grant the motion after Judge O’Gorman had denied it.
    VIII. The papers before Justice Dugro presented a new case for the granting of defendant’s motion, (a.) He had all the proceedings on the trial, including Justice O’Gorman’s views of the effect of the general denial as to admissibility, evidence, illegality, and the proceedings at, and opinion of, the general term, and the result; and also the evidence at the trial of both plaintiff and defendant, showing the real transaction and its illegality. These facts called for the granting of the motion, irrespective of Judge O’Gorman’s decision on the former hearing, and should have relieved him from all delicacy in deciding differently from Judge O’Gorman. (6.) He also had Judge O’Gorman’s opinion, which showed that he evidently did not consider the defence of the extension of time of performance, and which defence it would be inequitable to exclude.

      Booraem & Hamilton, attorneys, and Ira Shafer and William H. Hamilton of counsel, for respondent, argued :—
    I. This motion is without precedent in practice. No new facts whatever are stated, except the fact that the plaintiff has finally succeeded in getting the erroneous ruling of Judge O’Gorman at the trial corrected by the Court of Appeals. The stipulation stands in full force, and, by its terms, the defendant is precluded from all defences except that of the general denial. In fact, the motion papers served on this motion hy the defendant are not nearly as strong in his favor as those previously submitted to Judge O’Gorman. This motion is made nearly six years after the action was commenced, nearly four years after the first motion was denied, and three months after the order entered on the decision of the Court of Appeals. Judge O’Gorman has long since left the bench, although he remained a member of this court for a considerable period after the first motion was decided by him. The defendant preferred not to appeal from Judge O’Gorman’s decision, and elected to go to trial upon his answer of a general denial. Meanwhile, the plaintiff has been put to a great amount of trouble and expense in getting the mistrial corrected, and now in consequence of age and severe illness, his presence and testimony at the new trial will be lost. ■Under these circumstances, without considering the merits of- the original motion, could Judge Dugro do otherwise than deny this motion ? The granting of it would have been a most flagrant abuse of power and discretion, and contrary to every notion of fairness and orderly procedure. This court, as long ago as 1869, in the case of Mayer v. Apfel, 2 Sweeny, 729, at a general term, has for all time adopted a good and salutary rule, which, if applied in this case, will make short ’work of this appeal. Spencer, J.: “ Whatever may he the power or authority for such a proceeding ” (i. e., one judge reviewing and reversing another judge), “ it is, in my opinion, bad in practice, and the cases where the power is exercised should be very extreme and exceptional, and I believe this practice has never been tolerated in this court. I think I can speak for myself and associates when I say that we feel hound to sustain and to abide by the decision of any one of the judges of this court when acting within his power and jurisdiction as a judge, until the same shall be reversed by the general term. A late decision of Mr. Justice Cardozo, at a special term of the Supreme Court of this District, to this effect, meets with my full and cordial approval.” In addition to the foregoing case, we cite Hallgarten v. Eckert, 1 Hun, 117; Bolles v. Duff, 56 Barb., 568.
    II. Let us analyze this motion a little, (a.) It is a motion for the reargument of a motion made by the defendant to set aside the stipulation, and for leave to amend his answer as he desired on the prior motion, which was denied. (1.) Why does he make this motion ? Because he was beaten in the Court of Appeals. (2.) When does he make it ? Three years and seven months after the decision of the former motion. (3.) Is this laches ? It would be in any case hut this ; nothing deters the defendant and his counsel. (4.) Was any point overlooked by Judge O’Gorman ? No one pretends there was. So much for the motion for re-argument. (b.) They move for leave to renew the motion on new facts ? No: on what ground, then ? Because if leave is not given, and their answer is not amended, under the decision of the Court of Appeals, the plaintiff must succeed, the defendant, having abandoned his general denial at the trial. (1.) Is their motion based upon the same state of facts as the prior one ? Yes; unless they be more favorable to the plaintiff. (2.) Is the now proposed amended answer the same as the prior one ? Yes, identically the same, (c.) In the prior motion, they moved to set aside the stipulation in the case, that only a general denial should be interposed, on the ground that the Messrs. Noyes had no power to make it and to amend their answer. In both respects they were defeated. Judge O’Gorman’s masterly opinion should be read. We have not stopped to argue the gross injustice that would be done to the plaintiff’s cause, of his inability to he in court to make suggestions to his counsel, to aid in selecting the jury, and to give evidence in court, or elsewhere for that matter, upon the question of the proposed additional defences if, in violation of the stipulation, the court should allow them to he set, up by amendment.
    III. But the original motion was rightly decided by Judge O’Gorman, if the merits of it are still open to discussion. The general authority of the attorneys was sufficient to bind the defendant. The following cases cited and set forth in argument by the counsel for respondent. Palen v. Stair, 7 Hun, 422; Ross v. Ferris 18 Ib., 211; Keogh v. Main, 52 Supr. Ct., 160; Rust v. Hunselt, 43 Ib., 571; Metropolitan v. Abbey, 49 Ib., 294.
   By the Court.—Gildersleeve, J.

The defendant being in default, his attorney entered into a stipulation, by which the default was waived, without the ¡payment of costs, on condition that defendant should interpose only a general denial. Afterwards, the defendant, who claims that such stipulation was made without his knowledge or consent, which assertion is denied by his former attorney who made it, changed his attorneys, and moved to set aside this agreement and for leave to serve an amended answer, setting up, in addition to the general denial, the statute of limitations and an allegation that the agreement of trust mentioned in the complaint was void as against public policy. This motion was argued at special term in March, 1888, and denied; whereupon, on April 9, 1888, an order was duly entered denying said motion, from which order no' appeal was taken. The case came on for trial in November, 1888, and a verdict was rendered for the defendant, the trial judge allowing the defendant to give affirmative testimony tending to show the illegality of the contract and trust set forth in the complaint. An appeal was taken by the plaintiff to the general term, where the judgment in favor of the defendant was affirmed. Thereupon, the plaintiff appealed to the Court of Appeals, where the judgment was reversed and a new trial granted, on the ground of tlie inadmissibility of the defendant’s testimony regarding the illegality of the contract and trust under an answer setting up merely a general denial. See this ease in 38 State Rep., 910. On July 1, 1891, the judgment of the Court of Appeals was duly made a judgment of this court, and on the same day a copy of the order was duly served on defendant’s attorney, with notice of entry. The cause was thereupon placed on the calendar for a new trial, and notice of trial was served for the October term, 1891. On September 26, 1891, the defendant made a second motion, on substantially the same state of facts as the first motion, to set aside the stipulation and for leave to serve an amended answer. This second motion was also denied, and from the order denying the same defendant appeals to the general term.

We are of the opinion that the defendant is guilty of laches. His proper course.would have been to appeal from the order denying the first motion to amend the answer and set aside the stipulation. He was not justified in speculating as to what the result of going to trial on the original answer would be, and then, on finding the Court of Appeals against him, in renewing his motion to amend the answer, nearly four years after making the original motion.

It will not be denied that the court has power to set aside or modify such stipulations as the one in question. See Barry v. Mutual Life Ins. Co., 53 N. Y., 536; People v. The Mayor, 11 Abb., 74; Quinn v. Lloyd, 7 Robt., 542. Nor will it be disputed that the defendant has suffered injury by reason of the stipulation made by his attorney. But in view of the conflict of evidence on the question of defendant’s knowledge and approval of the act of his attorney, and in consideration of defendant’s laches, we do not think this is a case in which the court should interfere to set aside a stipulation^ made by the attorneys for the respective parties, by which one gave up a right in return for the waiver of a right by the other.

The order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, P. J., and McAdam, J., concurred.


text:
    FRAZIER M. DOLBEER, Respondent v. JOHN STOUT, Appellant.

      Attachment, warrant of, vacation of same on motion.

    The plaintiff, by whom the attachment against the defendant -was obtained, is the assignee of the cause of action. The affidavit upon which the attachment was issued was made by him, and in it he swears that the sum claimed is due “ over and above all counter-claims known to him." The defendant claims that the affidavit is insufficient because the plaintiff being only an assignee should have added to the above the words “ or to his assignors,” and that he should also have shown the sources from which he derived his knowledge, that there were no counter-claims.

      Held, that the language used by the plaintiff is the exact phraseology required by section 636 of the Code in that regard. The rule is not the same where the affidavit is made by an agent or attorney of a plaintiff as it is when made by the assignee of a claim who is himself the plaintiff. In the latter case the mere statement required by section 636 of the Codo is sufficient. This conclusion is logical and just, because the law will presume that the owner of the claim, having made himself liable for costs and given a bond, has knowledge of what he states, stands upon the same footing as his assignor would have stood had he not assigned the claim, but had become the plaintiff in an action to enforce it. If the plaintiff makes the affidavit of his own knowledge, the language of the Code is sufficient, -whether the plaintiff is the assignee or the original owner of the claim, unless it affirmatively appears that he could not have had any personal knowledge of the matter.
    Before Freedman, P. J., and Gildersleeve, J.

      Decided January 11, 1892.

      Appeal from an order denying motion to vacate an attachment.

      Thomas J. Farrell, for appellant, argued :—
    I. It does not appear from the respondent’s affidavit that he ever had any business relations with the appellant or any means of knowing, of his own knowledge, that the said claim is due over and above all counterclaims. An attachment is a provisional remedy of a very severe nature, and it should not be sustained, unless the affidavits are clearly sufficient for granting the warrant. O’Brien v. Carroll, 1 Law Bull., 9.
    II. The affidavit of the respondent, where he makes oath that there are no counter-claims “ known to him,” may be technically true, but any stranger to the transaction, taking an assignment of the claim, could, with equal truth, make an affidavit to the same purport. The respondent simply swears that he does not know of any counter-claims, but it does not appear that, if there was a counter-claim, he would have known it. The fair and rational construction of the provision requiring proof of non-existence of counter-claims is that the court should be placed in possession of all facts connected with the transaction by a person who is thoroughly acquainted with it in all its phases, who knows that there are no counter-claims arising out of it, and whose relations to all the parties in interest are such as to fairly justify him in stating on oath that no counter-claims or offsets exist. Mallory v. Allen, 7 Civ. Proc. R., 287.
    III. In cases where an affidavit on attachment is made by an agent or attorney, it must be shown that the party making the affidavit had such relation to the business of the principal as to justify the inference of his knowledge as to the facts he swears to. Cribben v. Schillinger, 30 Hun, 248; Belden v. Wilcox, 47 Ib., 331; Ruppert v. Haug, 87 N. Y., 141; Lee v. Cooperative L. Assn., 19 State Rep., 879. In the present case there is nothing in the respondent’s affidavit showing that he ever had any business connection or dealings with appellant, or that he knows anything about the transactions between the appellant and Frederick C. Linde & Co., which is the subject of the present suit.

      Edward S. Clinch, for respondent, argued:—
    I. The affidavit is made by the plaintiff, who states, positively, all the facts required by section 636 of the Code. That section requires an affidavit to the satisfaction of the judge granting the attachment, and it has been held that, where the affidavit sets forth enough to call on the officer for the exercise of his judgment, it gives jurisdiction. Conklin v. Dutcher, 5 How., 386; Skinnion v. Kelley, 18 N. Y., 355; Kissock v. Grant, 34 Barb., 144. A decision conclusive of the questions presented on this appeal is that in Crowns v. Vail, 21 N. Y. State Rep., 208; S. C., 51 Hun, 204, where it was held that statements in affidavits will he presumed to have been made on personal knowledge, unless stated to have been on information and belief, and unless it appears affirmatively and by fair inference that they could not have been, and were not, on such knowledge. For instance, if it appears on the face of the papers that the affidavit is made by an attorney-at-law of the plaintiff, the court will presume that the attorney has no knowledge other than such as he derived while acting as attorney of the plaintiff, and require him to state the grounds upon which he bases his aveiments, hut there is nothing on the face of the papers, in this case, which justifies any inference that the plaintiff does not know of what he speaks wdien he says, in his affidavit, that the facts are as there stated. It certainly does not appear affirmatively, nor by inference, that the allegations in the affidavit could not have been, and were not, made on the personal knowledge of the plaintiff. In the later case of Hill v. The Knickerbocker Electric Light Co., N. Y. Law Journal, Nov. 27, 1891, 38 N. Y. State Rep., 417, the general term of the Supreme Court for the •first department, following the decision in Crowns v. Vail, held that, in an action brought by an assignee of a claim, an attachment granted upon the affidavit of the assignee, setting out the necessary facts as if within his personal knowledge, is properly granted, unless it .clearly appears by said affidavit that the circumstances are such that such facts could not possibly have been •within his own knowledge.
    II. In respect to the second ground, it is sufficient to state that the section requires an affidavit, showing that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims Imown to him. The affidavit states that the plaintiff “ is entitled to recover said sum of $4,811.46, with interest thereon, from the 6th day of June, 1891, over and above all counter-claims known to him.” There rvas nothing upon the face of the papers upon Avhich the warrant of attachment was granted in this case, which justifies the inference that the plaintiff did not have positive knowledge of what he swore to.
   By the Court.—Gildersleeve, J.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The plaintiff, by whom the ■attachment was obtained against the defendant, is the assignee of the cause of action. The affidavit upon which the attachment was issued was made by him; and in it he swears that the sum claimed is due “ over and above all counter-claims known to bim.” The defendant claims that the affidavit was insufficient for the reason that as the plaintiff is .only the assignee of the cause of action, he should have added the words or to his assignors,” and that he should have shown from what sources he derived his knowledge that there were no counterclaims.

The language used by the plaintiff is the exact phraseology required by section 636 of the Code in that regard. He makes the statement absolutely, without giving the sources from which he obtained his knowledge. The learned counsel for the appellant urges that it might well be that the plaintiff, the assignee of the cause of action, might not know of any counter-claim, being only partially familiar with the business transactions out of which the claim grew; while, at the same time, there might, in point of fact, be a counter-claim known to the assignors of plaintiff. It may be suggested, in answer to this, that it is just as reasonable to suppose that the plaintiff, on being made assignee of the cause of action, would naturally inquire, as an intelligent and prudent man should, into the transactions involved; and if there were any counter-claims, that he would ascertain them.

The case of Crowns v. Vail, 51 Hun, 204, which controlled the decision of the court below, is exactly in point. Likewise, in the case of Mallary v. Allen, 15 Abb. N. C., 338, the general term of the City Court of New York held that the expression known to him,” in section 636 of the Code,—referring to the allegation in regard to counter-claims in the affidavit,—is a mere limiting clause, and proof of the plaintiff’s knowledge that there is no counter-claim is not essential to confer jurisdiction to issue the warrant. In that case, as in the case at bar, the plaintiff was the assignee of the cause of action.

In the case of Doctor v. Schnapp, Civ. Pro. R., 144, the City Court general term held, where one of several plaintiffs made the affidavit for attachment, that the law will not infer the matters positively sworn to are not within the personal knowledge of the affiant, unless it is apparent that such knowledge is a matter of impossibility.

The case of Ruppert v. Haug, 87 N. Y., 141, cited by the counsel for the appellant, is not analogous to the case at bar, for the reason that in that case the affidavit merely stated that the plaintiff was entitled to recover the sum of money specified, without any reference to a counter-claim whatever; which is manifestly not in accordance with the requirements of section 636 of the Code.

Neither does the case of McVicar v. Campanini, 19 State Rep., 56, cited by the appellant, apply, for the reason that in that case the affidavit was made by the agent of the plaintiff, without stating his sources of knowledge.

Nor is the case of Lee v. Co-operative Life Association, 19 State Rep., 879, in point, as in that case the affidavit was made by the brother-in-law of the plaintiff, who fails to show any knowledge of the matter.

Neither does the case of Cribben v. Schillinger, 30 Hun, 248, apply, as in that case the affidavit was made by one of the attorneys for the plaintiff, in which he merely stated that his knowledge of the matter was derived from a letter sent to him by plaintiff, containing ;a .statement of the account, upon which the action was founded 5 which is clearly insufficient, as he does not even claim that he was informed by the plaintiff of the non-existence of a counter-claim.

Nor is the case of Beldon v. Wilcox, 47 Hun, 331, at all decisive of this appeal, as the affidavit there was made by a third person on information and belief, without stating any reason why the plaintiff did not make the affidavit, and setting forth that his information was derived from a .complaint and affidavits, filed in the office of the county clerk, more than five weeks prior to the time of the making of the affidavit in the attachment proceeding, with nothing to show that within those five weeks a different state .of facts had not arisen. This plainly is not a similar case to the case at bar.

The rule is'not the same where the affidavit is made by an agent or attorney of a plaintiff, as it is where the affidavit is made by the assignee of a claim, who is himself the plaintiff. In case the affidavit on attachment is made by an agent or attorney, the law very properly exacts that he should show some knowledge of the subject, and not rest upon the bare statement of the language of section 636 of the Code, that the amount specified is due and owing over and above all counterclaims known to him ” or to plaintiff. But where the affidavit is made by the assignee of the claim, the mere statement required by section 636 of the Code is sufficient. See Crowns v. Vail, 51 Hun, 204.

This is logical and just, for the reason that the law will presume that the owner of the claim having made himself liable for costs, and having given a bond, has knowledge of what he states, and is in all respects on the same footing as his assignor would have been, had he not assigned the claim, but become plaintiff in the action.- A discreet man, proposing to become the assignee of a claim, will make himself familiar with the matters involved in the assignment, before consenting to receive the claim and bring the action. The law presumes every man to act with fair intelligence and reasonable discretion, unless the contrary appears.

If the plaintiff makes the affidavit of his own knowledge, the language of the Code is sufficient, whether the plaintiff be the assignee of the claim or the original owner (see Crowns v. Vail, supra), unless it affirmatively appears that he could not have had any personal knowledge of the matter.

This view is supported by Ruppert v. Haug, supra, where it was held : “ It is enough if the affidavit shows this to the satisfaction of the judge, who receives the application for the warrant, but there must be some evidence. Stuben Co. Bank v. Alberger, 78 N. Y., 252. The words of the statute need not be followed, although they furnish the safest formula.”

In that case, there was no evidence of the non-existence of a counter-claim, inasmuch as the affidavit was silent in that regard; whereas in the case at bar the affidavit supplies the necessary evidence.

For the reasons above indicated, the order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, P. J., concurred.


text:
    FRAZIER M. DOLBEER, Respondent v. JOHN STOUT, Appellant.
    Attachment, motion to vacate, etc.

    This was an appeal from an order denying a motion to vacate an attachment made in the same action reported previously (antep. 269). The motion was made subsequently to the other and before another judge, and upon different grounds, and may be named motion No 2. The facts and points in the case appear in full from the points of the counsel and the opinion of the court.

      Held, that the defendant could not have set up a counter-claim in this action even if the assignors were the plaintiffs instead of their assignee, and defendant having no counter-claim against plaintiff’s assignors, can have none against the plaintiff, the assignee of the claim.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.

      Decided January 11, 1892.
    Appeal from an order denying defendant’s motion to vacate an attachment.

      Thomas J. Farrell for appellant, argued :—
    I. One of the points made by the respondent to defeat the appellant’s motion was that the denial of the first motion of appellant to vacate the attachment on the papers was a bar to the making of the second motion-It is a well settled rule of practice that the denial of a motion to vacate an attachment, where such motion is based solely upon the papers on which the attachment was granted, does not prejudice the making of a subsequent motion founded on affidavits disproving some essential allegation contained in the affidavit upon which the attachment was issued. Rumsey's Practice, vol. 1, page 556; Thalheimer v. Hays, 42 Hun, 93. Upon a motion made on affidavits to vacate an attachment, every allegation on which the attachment was granted may be disproved, and whenever any essential fact is successfully controverted the attachment, will be vacated. Code Civil Procedure, § 683; Boscher v Roullier, 4 Abb., 396; Van Allen v. Sampson, 5 Weekly Dig., 288. The appellant’s first motion was based solely upon the affidavit upon which the attachment was granted, the appellant claiming that such affidavit was insufficient to give the court jurisdiction. The second motion was made on affidavits disproving a material and essential allegation contained in the affidavit upon which the warrant was granted, viz., the allegation that the amount sued for was due respondent over and above all counter-claims.
    II. The appellant’s claim for damages in the action against Linde & Co. in the Supreme Court constituted a counter-claim against the claim of Linde & Co., for storage. The affidavit submitted by the appellant sets forth fully and at large all the facts constituting this counter-claim. Upon the motion to vacate the attachment the appellant by his affidavit presented these facts to the court and was entitled to have the same met by the respondent. The affidavits submitted by the respondent in opposition to the motion to vacate the attachment wholly failed to deny, controvert or explain any of the allegations above set forth, except the allegation that the assignment to the respondent was a device, etc. It is a fact that is not disputed that the respondent’s claim for storage and the appellant’s claim for damages arise out of the same agreement and transaction. Therefore the appellant’s claim for damages constitutes a counter-claim against Linde & Co. Code Civil Procedure, 501. Suppose Linde & Co., instead of making an assignment to respondent, had themselves brought action against the appellant to recover the amount of the storage. In such an action it would have heen clearly the right of the appellant to set up his claim for damages as a counter-claim.
    III. The assignment of the claim in suit by Linde & Co. to the respondent could not deprive the appellant of his right to counter-claim his damages against the claim for storage. This assignment passed to the assignee no greater rights than were possessed by the assignor. The respondent under the assignment acquired the rights neither more or less of the assignor, and stands in the exact position of the assignor, as the assignor could transfer no better right than that of which he is possessed. Bush v. Lathrop, 22 N. Y., 535; Ely v. McNight, 30 How., 97; Littlefield v. Albany County Bank, 97 N. Y., 581; Martin v. Kunzmuller, 10 Bosw., 26; Myers v. Davis, 22 N. Y., 489. It is the general and. well established rule that an assignee of a demand or right in action, negotiable instruments only excepted, holds subject to all equities, burdens and offsets which existed against the assignor at the time of the assignment. Blydenburgh v. Thayer, 1 Abb. Ct. of App., 156. The Code of Civil Procedure, section 1909, provides as follows: ei Where a claim or demand can be transferred the transfer thereof passes an interest which the transferee may enforce by an action or special proceeding, or interpose as a defence or counter-claim in his own name, as the transferor might have done. Subject to any defence or counter-claim existing against the transferor before notice of the transfer or against the transferee.

      Edward S. Clinch, for respondent, argued:—
    The defendant moved, on affidavits, for an order that the warrant be vacated, on the ground that the plaintiff is the assignee of the cause of action, and that, as against his assignors, the defendant had a counter-claim. The motion was heard by Mr. Judge Dugbo and denied, and from the order thereupon entered the defendant also appeals. On the argument of the motion the defendant’s counsel conceded, and it is not disputed by the defendant’s papers : First—That the defendant owes the storage charges which constitute the cause of action. Second—That the plaintiff is the assignee of that cause of action. Third—That the defendant has no claim against the plaintiff. Defendant’s counsel urged that the granting of an attachment was discretionary with the court, and asked, as a matter of discretion, that it be vacated. The plaintiff contends that, Avhen affidavits are presented which show facts which entitle the plaintiff to the warrant and the facts are established to the satisfaction of the judge granting it {Code, § 636), the warrant must issue. If there is any question as to the facts, the court, in its discretion, may refuse to grant the warrant. Assuming that the warrant is discretionary that discretion was exercised by Judge McAdam: (1.) When he granted the warrant. (2.) When he denied the motion to vacate it. The sufficiency of the affidavit upon Avhich the warrant was granted, has been passed upon by Judge Mo Adam, and the order made by him has been appealed from by defendant, and the argument of plaintiff’s counsel, in support of it, Avill not be here repeated, but the court is respectfully referred to the brief submitted on that appeal. The Code, section 636, requires an affidavit on the part of the plaintiff, that he is entitled to recover a sum over and above all counterclaims known to him. A counter-claim is a cause of action upon which the defendant is entitled to an affirmative judgment against the plaintiff, should he succeed in establishing it. The defendant’s counsel necessarily concedes that the defendant has no counter-claim against the plaintiff:, but claims that he has a set-off: to the cause of action, but no reference to the existence of a set-off is required to be made. The decision of the Supreme Court in Crowns v. Vail, 51 Hun, 204; 21 State Rep., 208, and cited by Judge McAdam, is conclusive of the questions raised by the defendant. In that case, the general term of the Supreme Court held that a plaintiff, who is an assignee, “ is not required to swear to counterclaims existing against his assignors. The requirement is, that the affidavit must show that the plaintiff is entitled to recover the sum stated therein, over and above all counter-claims known to him, and not known to him or his assignors.” 21 State Rep., 211.
   By the Court.—Gildersleeve, J.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The motion is made on affidavits, setting forth that at the time the cause of action was assigned to the plaintiff herein, another action was pending in the Supreme Court, in which the defendant herein was plaintiff and the assignors of the plaintiff herein were defendants, for damages growing out of the same transaction from which the cause of action herein arose; and that, therefore, there was a counter-claim existing against the plaintiff’s assignors, at the time of the issuing of the attachment herein, for an amount in excess of the claim in the case at bar, as in the Supreme Court action the claim was something over nineteen thousand dollars, while in the case at bar the amount claimed is less than five thousand dollars.

The plaintiff, as the assignee of the claim, stands in exactly the same position as his assignors would have stood, had they not assigned the claim, but been themselves the plaintiffs in this action. If a counter-claim existed against plaintiff’s assignors, at the time of the assignment of the claim to plaintiff, the latter took the claim subject to that counter-claim (see section 502 of the Code).

Had the assignors been the plaintiffs in this action, instead of their assignee, could the defendant have set up the demand, which constitutes the cause of action in the Supreme Court case, as a counter-claim in this action ? We think not.

Section 495 of the Code especially provides, in subdivision 3, that if it appears on the face of the counter-claim, demanding an affirmative judgment, that there is another action pending between the same parties for the same cause, the counter-claim would be demurrable. And if that fact should not appear on the face of the counter-claim, it could, nevertheless, be made available as a defence in the reply. See Ansorge v. Kaiser, 22 Abb. N. C., 306.

It, therefore, appears that the defendant could not set up a counter-claim in this action, even if the assignors were the plaintiffs, instead of their assignee. And certainly, if the defendant has no counter-claim against the plaintiff’s assignors, he certainly has none against the plaintiff himself, the assignee of the claim.

Since the defendant could not avail himself of his demand against the plaintiff’s assignors as a counter-claim in this action, the order appealed from must be affirmed, with ten dollars costs, and disbursements.

Freedman, P. J., and McAdam, J., concurred.