author: Bosworth, J.

text:
    The Mechanics’ Banking Association v. Christopher Kiersted.
    When a party, against -whom a verdict is rendered, moves on a case at Special Term, and obtains a ne-w trial on the ground that the verdict -was against evidence, on the terms of paying the costs of the trial and of the subsequent proceedings, the opposite party is entitled to a fee of ten dollars for every term the cause is necessarily on the Special Term calendar, on the case made, exclusive of that at which it is heard ; and for the latter term, to the fee given by the Code for the trial of an issue of fact.
    (Before all the Justices.)
    New York General Term, Feb., 1855.
    This action was tried before a Justice of this court and a jury, in April, 1854. The defendant obtained a verdict. The plaintiff made a case, on which he moved for a new trial, on the ground that the verdict was against evidence, which motion was granted upon the terms of paying the costs of the trial and of the subsequent proceedings. When the case was settled, the motion for a new trial was noticed to be made at a Special Term of the court, and the cause was placed on the calendar. It was so noticed and on the calendar three times, exclusive of that at which the motion was argued. The clerk, on adjusting the costs, to be paid as a compliance with the terms of the order on which a new trial was granted, allowed,
    For the term at which the action was tried, o O rH
    For the three terms it was on the calendar, on the motion for a new trial on the case made, . o O O CO
    Trial for issue of law,.. o O (M t — i
    Disbursements, .. o lo H
    Total, $55 50
    The plaintiff appealed from the adjustment, and insisted that the Code has made no provision for compensating the services of an attorney in resisting sueh a motion, unless under section 315, a sum not exceeding $10, may be allowed, as the costs of a motion.

      JR. TJJ. Mount, Jr., for plaintiff

      Willard, Sweeny and Anderson for defendant.
   By the Court.

Bosworth, J.

The motion for a new trial, on a case made, can be heard only at a Special Term of the court. (Code, § 265.) Such a motion cannot be made before a judge or justice, out of court. (Id. § 401.)

The motion is an enumerated motion. (Rule 27.) It can be noticed only for the first day of the term, and must be placed on the calendar. (Rule 28.)

Section 315 of the Code has no reference to such a proceeding, but relates solely to special non-enumerated motions.

In Waterbury v. Westervelt, (3 Sand. S. C. R. 749,) this court held that, in a case in which the questions of law arising upon a trial or verdict were subsequently heard at a Special Term, the success-ful party was entitled to the fee allowed by the Code for the trial of an issue of law.

In Wiggins v. Armstrong, (4 Sand. 688,) the same rule was applied, and a term fee of $10 for each term, exclusive of that at which the cause was argued, was allowed; and for the latter term, the prescribed trial fee.

In Roosevelt v. Brown, (1 Duer’s R. 642,) this court by a decision made at a General Term, reaffirmed this construction of the Code, and allowed costs accordingly.

Ellsworth v. Gooding, (8 How. Pr. R. 1,) and Hagar v. Danforth, (id. 448,) were actions in which the defeated party moved, at a Special Term, for a new trial, on a case.

In the former, Mr. Justice Harris, and in the latter, Mr. Justice Parker, decided that a fee of $10 for each term the cause was on the calendar, except that at which it was heard, was allowable, and for the latter term a trial fee.

Such a motion is an actual hearing and examination of a cause upon the merits, upon the issues joined in it. It is substantially a trial, as that proceeding is defined by the Code. (§ 252.)

We think the provision allowing a fee for the trial of a cause, should be so construed as to entitle the prevailing party to that fee, whenever such a hearing has been necessarily had of all the issues of law, or of all the issues of fact upon the merits, at a stated term of the court.

As the cause upon such a hearing, is necessarily upon the calendar, the fee of $10 for each term, when it is not reached or postponed, is also allowable.

The rule is to be deemed settled in this court, that in such a case, when either party is entitled to the costs of such a proceeds ing, he is to be allowed a fee of $10 for every term at which the cause is necessarily on the calendar, and not reached or postponed, exclusive of that at which it is tried or heard; and for the latter term, the trial fee prescribed for such an issue as is tried or heard. (Code, § 306, sub. 8.)

The trial, in this case, was practically that of an issue of fact. A defendant is entitled in such a case, to be paid $12. The compensation being the same as for the trial of an issue of law, the amount of the bill as adjusted is correct. • The only error is in the terms of the charge. That may he corrected, and the adjustment, as made by the clerk, mil be affirmed.


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    Hernandez, an infant, by his Guardian, v. Carnobeli.
    A party arrested and held to bail in a court of the United States cannot be arrested for the same cause of action, by process from this court. He is entitled to a discharge, or at any rate, to a reduction of the bail to a nominal amount, in analogy to the practice of filing common bail under the former practice.
    It is no exception to this rule, that the party was made a defendant in the court of the United States, in consequence of the Spanish consul being there also a defendant.
    As the plaintiff might elect to abandon the suit in the other court, and proceed here, the question was to be examined upon its merits.
    A father haying directed his agent to take his son from a school in the United States of America, and bring him back to Cuba, where he resided, and the agent using no undue force in effecting these directions, an action for false imprisonment, or assault and battery, cannot be sustained against such agent.
    (Before Hoffman, J.)
    Special Term, Feb., 1855.
    The defendant was arrested on tbe 8tb of February, 1855, upon a capias, at tbe suit of tbe plaintiff, sued out of tbe District Court of tbe United States for tbe Southern District of Hew York, and was beld to bail by order endorsed on tbe capias in tbe sum of $2,000. He was lodged in tbe Eldridge street jail. On tbe 9tb of February, 1855, an order of arrest was made in tbis action by one of tbe Judges of tbis court, directing tbe defendant to be beld to bail in tbe sum of $1,000. A detainer was lodged with tbe jailer to that effect. Tbe affidavits in each case were tbe same in substance, and related to tbe same cause of action. In tbe case in tbe United States Court, tbe Spanish consul was joined as a co-defendant.
    Tbe plaintiff, prior to tbis transaction, was put at a public school at Poughkeepsie by bis father, a resident of Cuba. Tbe latter being under arrest by tbe authorities of that island, was induced, by a promise to liberate him on that condition, to recall bis son from tbis country, and employed tbe defendant to effect that purpose. He instructed him to do so with baste and secresy. Tbe defendant executed these directions by inducing the son, -with the aid of the consul, to come to Hew York, on his way to Cuba, and did not employ any personal force to accomplish his object. The present actions were brought for assault and battery and false imprisonment.

      Charles Edwards for defendant.

      Theodore Sedgwick for plaintiff.
   Hoffman, J.

The defendant has been sued in this action, which is stated to be an action for false imprisonment, or assault and battery.. The complaint is not yet filed; but the case presented on the affidavits shows that such must be the cause of action ; and the counsel of the plaintiff states that the action is for the former cause.

There are two points raised in the case, as now before me.

1st. It appears that an action was commenced in the District Court of the United States against the present defendant, with Francis Stoughton, the Spanish consul, in which the defendant was held to hail in the sum of $2,000, and the order to hold to bail, endorsed on the capias by Judge Betts, is dated the 8th of February, 1855. The affidavits on which that order was founded state precisely the same facts, and supply identically the same cause of action as those in the present suit. The arrest in the suit in the District Court took place on the 8th of February.

On the 9th of February, on affidavits sworn to on that day, the order of arrest was made in this action, and a detainer was lodged with the keeper of the Eldridge street jail, in which he was a prisoner. Thus I understand the affidavits. At any rate, it is not contested that he is under process of arrest, and required to give bail in these two suits.

The action in the District Court is admitted to have been commenced because of the want of jurisdiction in any state court over the Spanish consul; and Camobeli, the defendant here, is made a party there, on the supposition that the jurisdiction over the consul may carry with it jurisdiction over others, otherwise not amenable to it. The language of Judge Ruggles, in delivering the opinion of the court in Valarino v. Thompson, (3 Selden, 582,) supports this fully in cases of a joint contract. Perhaps there is no ground for a distinction in actions for torts.

But, without attempting to decide this point, there was no necessity for the plaintiff making the present defendant a party to the suit in the District Court. He could sue Stoughton as a trespasser, or join the defendant as he might he advised. (Chitty on Pleadings, vol. i., p. 81, and cases.) Even then, if a plea of absolute necessity of joining him in that court could avail to justify a double arrest, that plea is not founded in fact or law.

But the idea is to me totally inadmissible, that, under any difficulty of proceeding, or upon any ground, this defendant can be twice arrested, by process out of different courts in the same state, for the same cause of action.

A number of cases upon this subject are collected in Petersdorf on Bail, 131, 139. (Law Library, vol. 10, p. 73.) See also Peck v. Hozier, (14 John. Rep. 346.)

The question, then, is, whether the defendant, having been last arrested by process from this court, is not entitled to absolute discharge, solely on this ground.

A better practice, however, is to reduce the bail to a mere nominal amount, similar to the discharge on filing common bail under the former system. (Carter v. Hunt, 1 Chit. R. 246.) But as the plaintiff might, perhaps, be entitled to an election, I have proceeded to consider the case on the merits of this application.

The Code now permits the partial trial of a cause upon a motion to discharge an arrest. The 204th and 205th sections have introduced this new principle in the law of bail, or extended and recognized a rule which, to a limited extent, prevailed in the Court of Common Pleas in England. (Petersdorf- on Bail, 194.) The Court of Appeals has interpreted the Code to admit of such a partial trial with the view to the vacating the arrest. (Corwin v. Freeland, 2 Selden, 565.) I have before stated the principle upon which it appears to me the court is to act in such a case. That is, that the inquiry is to be, whether, upon the whole case as presented, a verdict ought to be given by a jury, or a judgment by a single Judge, for the plaintiff or defendant. If the questions are doubtful, then the plaintiff has not made out his case, and the defendant should be discharged. It is in this particular that I differ from some able Judges, who incline to hold that the defendant is to make out clearly that the plaintiff cannot succeed. I have observed in other cases, that the principle of the Code is very similar to the doctrine of a court of equity, upon a motion to dissolve an injunction, or' discharge a ne exeat, when the question of the cause of action is 'for such purposes examined and determined ; although the cause proceeds, and the actual proofs may change the results entirely.

• In testing the present case by these principles, it appears to me, the plaintiff has not, as now exhibited, made out a cause of action. The extent to which the case made by him can be carried, is, that the father of the plaintiff was induced, by the promise of the Cuban authorities to liberate him, or the threat to continue his imprisonment, to direct his son to return; and for that purpose to commission the defendant to bring him from the United States. The fact of a foil and entire authority, in form and language, given by the father to accomplish this purpose, cannot be denied. The letter to the Spanish consul of the 23d of January, that to the son of the same date, as well as the written instructions to the defendant, are explicit and decided. The defendant, then, standing in the place of the parent, uses the very means which the parent directs, of haste and concealment, to accomplish his purpose. He uses no undue force or personal violence. The conduct of the son may well be accounted for in his wish to obey his father on the one side, and a reluctance to leave his associates, and the freedom of his situation, for a land which could not but be distasteful for him. I am happy that I am not called to interfere with this freedom of choice; but to hold that this agent and substitute of the father is subject to an action of assault and battery, or false imprisonment, for seeking to accomplish the wish and command of the father, even if essential to his own redemption from prison, seems to me totally unwarrantable.

The defendant must be discharged from the arrest, and the order vacated in this case.


author: Duer, J.

text:
    Sherman v. Partridge and another.
    An order of interpleader under § 122 of the Code can only be made, when it is certain that the only question is whether the plaintiff or a third person is the true owner of the debt, fund, or other property for which judgment is demanded.
    When it is insisted that the defendant is absolutely liable, and is precluded from setting up the title of a third person as a defence, his application to be discharged from the suit must be denied.
    It is only in an action against the defendant himself, that the question of his absolute liability can be properly raised and determined. A Judge would exceed the just limits of his authority by so deciding the question upon a motion, as to put an end to the action, and bar an appeal.
    When the action is for the recovery of a debt arising from the sale of goods, the purchaser cannot require his vendor to interplead with a third person claiming to be the owner of the goods. This is not a ease in which an interpleader has ever been allowed, nor is it embraced within the terms of the Code.
    (Before Dues, J.,)
    At Special Term, Feb., 1855.
    Motion under § 122. of the Code, that one Henry Delafield he substituted as the sole defendant, and the present defendants be discharged from all liability to either party, upon their paying into court the sum of $848 17; or if that relief should be denied, then that Delafield should be made a codefendant.
    The allegations of the complaint were, that one Philip RT. Searle, had-sold to the defendants a quantity of logwood of the value of $500, and for a valuable consideration had transferred and assigned to the plaintiffs, his .claim against the defendants, arising from the sale. That the defendants, in consideration of this assignment, had expressly promised the plaintiffs to pay them the price or proceeds* of the logwood, which it was averred amounted to the sum of $499 11, for which sum, the defendants having refused to pay it upon request, judgment was demanded.
    The affidavit of one of the defendants upon which the motion was founded stated, {inter alia,) that one Henry Delafield, a person not a party to the action, and without collusion with the defendants, demanded of them the proceeds of the logwood, alleging that it belonged to him, an'd that Searle had not the possession as owner, nor any right or authority to sell the same, or assign the price thereof.

      The affidavits which were read on the part of the plaintiffs in opposition to the motion, stated the following facts: That they had sold to Searle, for cash, a quantity of staves, and that he gave them his check for the price, the payment of which was refused. That he gave them an order on the defendants for a definite sum as the price of the logwood. That the defendants declined to pay the order, on the ground that the logwood had not yet been fully weighed, and that it was not certain that the price or proceeds would amount to the sum mentioned, but that they expressly promised to pay to the plaintiffs the whole proceeds when ascertained, provided the plaintiffs would obtain from Searle a general order or assignment of his claims. That such an assignment, which was set forth, was accordingly obtained, and that the plaintiff relying upon it, and upon the promise of the defendants, had omitted to obtain from Searle, who is now insolvent, a return of the staves sold to him, as they otherwise might and would have done.

      D. D. Lord for the defendants, and for H. Delafield.
    I. The case is not at all varied by the plaintiff’s affidavits, the facts set forth being wholly insufficient to prove that the defendants have made themselves liable to the plaintiffs in all events for the price of the logwood, the promise they gave amounting in reality to no more than a promise to pay to the plaintiffs, as assignees, the sum to which Searle, as owner of the logwood, might finally appear to be entitled; and as to the allegation that they had sustained damages from their reliance on the promise of the defendants, it is too vague and uncertain to merit attention. And were it otherwise, the defendants, as the nature of the relation between the plaintiff and Searle was not disclosed to them, cannot be responsible. As the plaintiffs therefore can only maintain the action as the assignees of Searle, they stand in the same situation as Searle himself, and consequently their right to recover depends solely upon the question whether he or Delafield, as the true owner of the logwood, is entitled to the proceeds of the sale. These proceeds may justly be considered a fund of which the defendants were merely the depositaries, and as they are willing and have offered to pay the fund into court, they are entitled to be discharged. The case is plainly one of those to which the provisions of the Code apply, and in which an intexpleader has always been granted.
    II. If the defendants are not to be discharged, the application of Delafield to be made a party to the action by a proper amendment, cannot be denied. The action being brought for a particular fond, is an action for the recovery of personal property, within a fair interpretation of the words of the Code. Delafield has, or claims to have, an interest in the subject of the action, and to enable him to assert his rights, he ought to be made a code-fendant. If this cannot be claimed as his positive right, it would at least be a fit exercise of the discretion of the court.

      J. T Williams for the plaintiffs.
    I. The material question is, whether the defendants shall be discharged and Delafield be substituted as the sole defendant; and to grant this would be a hazardous and unequitable exercise of the discretion of the court. It would be unjust to release the defendants from a positive contract, by their reliance on which the plaintiffs have lost the remedies which, as against Searle, they would otherwise have possessed and exercised. (Orawshay v. Thornton, 7 Simons, 391, and Pearson v. Cardón, 4 Simons, 218.) It is a fatal objection to the application of the defendants, that they dispute the amount of the plaintiff’s claims. The plaintiffs demand a judgment for $499 11, and the defendants offer to pay into court only $848 17. (Chamberlain v. O’ Connor, 8 How. Pr. R. 45.)
    n. As to the application of Delafield to be made a codefend-ant, the court has no discretionary power to grant it. This is not an action for the recovery of real or personal property, and it is an abuse of language to call it so. It is an ordinary action for the recovery of a debt, not of lands, nor of specific chattels. (Judd v. Young, 7 How. Pr. R. .79.)
   Duer, J.

I. Taking into consideration the facts set forth in the plaintiff’s affidavits, and which I think might properly be given in evidence to sustain the averment in the complaint, of a special promise, I am clearly of opinion that the motion for the discharge of the defendant, and the substitution of Delafield as . the sole defendant, must be denied.

An order of interpleader under § 122 of the Code, can only be properly made when the whole controversy turns upon the right of property, that is, upon the question whether the plaintiff in the suit or the claimant whose substitution as the defendant is desired, is the true owner of the debt, fund, or other property for which judgment is demanded. When the plaintiff insists, as in the present case, that the defendant, by a personal contract or otherwise, has rendered himself hable in all events for the debt sought to be recovered, and is precluded from setting up the title of a third person as a bar, it would be manifestly unjust to make the order, since in the language of Lord Cottenham in Crawshay v. Thornton, (2 Mylne & C. 1,) it would deprive the plaintiff of his legal remedy, and might involve the sacrifice of his legal rights, without affording him any equivalent or compensation.

Applying these remarks to the case before me, it is only in an action against the defendants themselves, that the question whether they have not rendered themselves absolutely liable to the plaintiffs for the price of the logwood can be so determined as to secure to the plaintiffs the right of appeal to the court of ultimate jurisdiction. To deprive them of this right by putting an end to this action in its present form, and substituting Delafield as the sole defendant, it seems to me would be an arbitrary and unwarrantable exercise of judicial power. As against Delafield, the plaintiff could only recover upon proof that Searle was the owner of the logwood, or had full authority to make the sale, and the question whether, even upon the supposition that Searle was not the owner, and had no such authority, the defendants were not bound to pay to the plaintiffs the stipulated price, would not be determined at all. And thus the plaintiffs might be deprived of the judgment, to which, had the action retained its original form, they would have been entitled. Whether, if the plaintiffs shall succeed upon the trial in establishing the facts set forth in their affidavits, the defendants will be precluded from seting up the title of Delafield as a bar to a recovery, is a question upon which I am not to be understood as expressing or intimating any opinion. I only mean to say that as the question of the absolute liability of the defendants is distinctly raised by the complaint and the affidavits, I have no" right to decide it upon this motion, and thus to prevent its decision in the regular progress of the cause.

The provisions in § 122 of the Code, are founded upon the English statute 1 and 2 "Will. IV. c. 58, and hence the decisions upon that statute have with great propriety been referred to. They appear to have settled the rule, that it is only when no other question than the right of property is meant to be litigated, that an interpleader can justly be allowed. When it is alleged that the person who seeks to be discharged as a mere depositary or stakeholder, is liable upon any ground independent of the title, the application must be denied. Crawshay v. Thornton, (7 Sim. 391, S. C.; 2 Mylne & Co. 1.) Pearson v. Cardon, (2 Russ. & M. 606;) Palorni v. Campbell, (3 Dowl. N. S. 397,) and Lindsay v. Barron, (6 C. B. R. 291,) differ in circumstances from the case before me, but in principle are not to be distinguished. As they appear to me to have been rightly decided, it is my duty to follow them.

Nor is it only upon the ground that has been stated that I must refuse, by substituting Delafield, to discharge the defendants. Had this action been brought by Searle himself or by the plaintiffs merely as assignees, I must still have said that the facts do not exhibit a case for an interpleader under a just construction of the Code. The plaintiffs seek to recover a debt arising upon contract, but Delafield is not a third person, not a party to the suit making a demand for the same debt,” as the words of the Code require him to be, to justify an order for his substitution. As he denies that Searle had any authority to make the sale, his demand as owner is for the logwood itselfj or its value, which may be greater or less than the price agreed to be paid; and at any rate is not a debt of which, as such, he may compel the payment. The words of the English statute do not at all differ in meaning from those of the Code, and the Court of Exchequer has held that by their necessary construction, they preclude a purchaser of goods from calling his vendor to interplead with a third person claiming to be the owner. And one of the learned judges truly observed, that, independent of the statute, an interpleader in such a case had never been allowed in a court of equity. (Stancy v. Sidney, 14 Mees. & W. 800.)

The provisions of the Code, like those of the English statute, were certainly not designed to introduce new cases of interpleader, but merely to enable defendants, in cases where an interpleader is proper, to relieve themselves by a summary proceeding, from the delays and expense of a formal action.

II. The alternative motion that Delafield may be made a co-defendant, must also be denied. This is not an action for the recovery of real or personal property within the meaning of the Code. He has no interest that can be endangered or affected by any judgment that the plaintiffs may obtain, nor is-his presence necessary to a complete determination of the controversy. As owner of the logwood, he must seek his remedies against the defendants, or those into whose hands the property may have passed.

The objection that the defendants have offered to pay into court a less sum than is demanded by the complaint, if other objections could be removed, I should by no means regard as fatal. I should then have no difficulty in directing a reference, or an issue for ascertaining the sum which, as the price of the logwood, the defendants were bound to pay.

I remark, in conclusion, that unless the defendants have rendered themselves absolutely liable, which is strenuously denied by their counsel, I do not see that they can be prejudiced by the denial of this motion.. If the sale made by Searle was fraudulent and void, the title of the true owner, according to the decision of this court in Bates v. Stanton, (1 Duer, 79,) may be set up by them as a full defence.

I shall deny both motions without costs, and with liberty to the defendants, if they shall be so advised, to commence a regular action for compelling an interpleader.


author: Boswobth, J.

text:
    Fry v. Bennett.

    When a motion for a new trial is made on á ease, and it appears that a material fact has been found on insufficient evidence, the court, in its discretion, may receive proof of the fact at the argument, and refuse a new trial, if such fact he proved by a record or other documentary evidence, incontrovertible.in it3 character. But this rule has no application to a motion for a new trial on a hill of exceptions.
    Evidence -will not he so received of a fact not sufficiently proved, when it consists of oral evidence, which, from its nature, is liable to be contradicted and impeached.
    Much more will the court refuse, after a new trial has been ordered upon full argument, to vacate such order and take such proof at the bar of the court, or allow it to be given before a referee, and if satisfactory, allow the bill of exceptions to be amended in respect to the evidence, and then order a reargument. There is no precedent for such a proceeding. If the court had the power to permit it, such power ought not to be exercised. Great irregularities and inconvenience would be the result.
    (Before all the Justices.)
    General Term, March, 1855.
    Aftes the General Term had ordered a new trial in this action, for the reason that the deposition of Strakosch, which had been taken de bene esse, was allowed to be read without sufficient proof of his continued absence from the state having been first given, the plaintiff, on due notice and on affidavits served therewith, moved the General Term, for an order permitting him to prove at the bar of the court, or before a referee to be appointed, that Strakosch left the state immediately after he was so examined, and continued so absent until after the trial, (which is reported, anie.)

    That on such fact being satisfactorily proved, the order granting a new trial should be vacated, and a reargument ordered, and that the case or bill of exceptions should be so amended, that it would appear thereby, that such fact was proved at the trial before the deposition was permitted to be read in evidence. The affidavits on which the motion was made, showed very clearly that Stra-kosch left the state immediately after his deposition was taken, and continued absent from, and out of it, until after the trial.
    The plaintiff’s counsel, on arguing the motion, was permitted to reargue the question whether the evidence given at the trial, of such absence, was not sufficient to authorize the deposition, to be read.

      A. L. Jordan and F. A. Sherman for the motion.
    The proof of the absence of Strakosch from the state, is now, and was at the trial, addressed solely to the court and not to the jury, and therefore could not affect the verdict. The proof showing, both now and at the trial, that Strakosch was out of the state, and the proof at the trial, slight as it was, being satisfactory to the Judge before the deposition was read to the jury, if it is now satisfactory to the court, the order granting a new trial should be vacated. (Roche v. Wood, 7 How. Pr. R. 416, Morgan v. Avery, 7 Barb. 656.) And the court may, after granting a new trial, even on an ex parte application, order a reargument and allow amendments in substance, and then reverse their own judgment. (Slocum v. Fairchild, 1 Hill, 294.) Under the Code .a new trial ■ ought not to be granted on the ground that the absence of .Stra-kosch was not satisfactorily proved at the trial, if it is satisfactorily proved now. (§§ 176, 467, 173, 174,. and 271, subd. 2.)

      D. D. Field, J. Townsend, and B. Galbraith opposed.
    Oakley, Ch. J., (Orally.) — On last Saturday a motion was made and argued in the case of Fry against Bennett. Fry, as is well known, sued Bennett for a series of libels .on his character and conduct as the manager of an opera. Trial was had of that suit, and it resulted in a verdict against defendant. In the course of that trial, the deposition of one Strakosch was offered in evidence. He had been examined by virtue of an order made for that purpose. His deposition was offered to be read, and it was received, under the general objection on the part of defendant’s counsel that the absence of the party was not satisfactorily proved. On the trial of the cause, an exception was taken to the ruling of the Judge, admitting that deposition, and a bill of exceptions, containing all the evidence in the matter, was brought before the court and argued. The court ordered a new trial_ solely on the ground of the improper admission of that deposition. Various other questions of importance and magnitude were involved in the case, in respect to some of which the Judges who decided the case expressed an opinion; but, as I understand it, the reversal of the judgment and the ordering of a new trial rested on no other ground than that just referred to. After this argument, and after the decision of the case, an order for a new trial was entered. The plaintiff now proposes to produce testimony at the bar of the court, in order to remedy the defect in the evidence which existed at the trial, in relation .to the absence of Mr. Strakosch. He pro-posea to produce witnesses and bare them examined, and he has presented the affidavits of these witnesses,, going to establish very clearly that this man was,, in fáct,. absent at. the time of the trial; and which evidence, if it had been produced on the trial, would be sufficient to have authorized the introduction of the deposition.
    In the discussion which took place last Saturday on this matter, counsel for plaintiff was permitted — perhaps a little irregularly— to enter into an argument as to the correctness of the decision of the court in admitting this deposition. The court heard him, as much perhaps out of deference to counsel as from any other reason. He also entered into a similar discussion, intending to show that the Judges who heard the case on the bill of exceptions, had come to a conclusion which was contrary to law. In disposing of this matter now, I take occasion to say that the Judges who made that decision, and ordered a new trial, and to whom these suggestions were made, see no reason to alter the views which they then entertained in relation to this matter. The question which counsel, in his argument, presented, did not naturally or positively connect itself with the motion before the court. Still, however, as the counsel entered into an argument on the subject, it is proper to say here, that the Judges who so decided have not, in those suggestions, discovered any reason to doubt the correctness of the conclusion at which they arrived in that case.
    Now, in respect to the points on which this motion turns, we have examined the matter, and we cannot see any just ground on which we can grant this motion. It has, no doubt, often happened — I know it myself in my own experience, and I know it as a matter of common expediency — that when, on the trial of the cause, there has been some omission of evidence, which afterwards, on an examination of the case at bar, is discovered to be material, it is within the discretion of the court to permit such evidence to be supplied. It is done, for instance, in the case of a judgment record, or of a deed, or of any documents as to which there can be no dispute, and which can lead to no conflict of testimony. The courts have occasionally, when such matters have come before them, sent a case back for a new trial; but that is seldom done when the purpose is merely to introduce a document which could, in no possible way, have influence upon the minds of the jury. The attempt now is to carry this practice further. " It is attempted to have an application of tbis bind made to tbe court after judgment in tbe case. After tbe case is decided, and a new trial ordered, it is attempted to introduce evidence on a point wbicb might be tbe subject of conflicting testimony. Tbus, witnesses wbom tbe plaintiff’s counsel proposes to produce before tbe court and examine, might, for all we know, be contradicted, and successfully contradicted, by others. At all events, tbe admission of such evidence would open tbe door for a trial on matters of fact wbicb were not sufficiently proved at tbe trial; and tbis would be clearly inconvenient, and not only that, but highly improper. We are quite of opinion, therefore, that we cannot extend tbe practice on tbis subject beyond tbe cases in wbicb it has been hitherto adopted; that is, beyond cases in wbicb, when a case is brought before tbe court, application is made to supply a defect in tbe evidence — forma! merely — and wbicb evidence, when produced, verifies itself, and is necessary, as a matter of record, to sustain tbe party who obtained tbe verdict. Tbis is allowed to be done when it is unnecessary and inexpedient to put tbe parties to tbe expense of a new trial, and where tbe proposed supplementary evidence is merely a paper wbicb cannot be disputed. In tbis practice there is nothing unsafe or inconvenient; but it is easy to see that if we were to go further, and undertake to enter into inquiries in relation to evidence wbicb in its very nature is controvertible, where opposite witnesses might be called, and where it would be for the court to weigh tbe credit of tbe witnesses, such a practice would lead to great irregularity. On that ground, therefore, it is quite clear that tbis motion cannot be granted. It is quite clear, also, that such a motion never has been granted after judgment being given. Tbe application is, in fact, to open a judgment wbicb has been entered, to set aside tbe order for a new trial, to allow additional facts to be proved, and to bring tbe matter up de novo. • In tbe judgment of tbe court, that would be tbe effect of granting tbis motion. Now, it is much better that tbe parties be put to tbe inconvenience of a new trial, in wbicb tbis defective proof in regard to Strakosch’s deposition may be remedied. On tbe whole, therefore, tbe motion must be denied. Tbe reasons for tbis decision are given more extensively in detail in tbe written opinion, wbicb can be resorted to by parties interested in it.
   By the Coubt.

Boswobth, J.

We have no doubt that the deposition of Strakosch was improperly admitted as evidence, and that a new trial should have been granted for that cause. It is now contended by the plaintiff, that, conceding this to be so, yet as the evidence on which its-admissibility depends is, by statute, to be addressed to the court only, and is not to be, and is not, considered by the jury in forming their verdict, and as it is now made apparent by satisfactory proof, or can be made so, that Strakosch was continuously absent from the state until after the trial, the court should now allow the fact to be proved; and that if conclusive proof is given, the order granting a new trial should be vacated, and a reargument ordered, and the case be so amended as to present on its face satisfactory proof of the fact of such absence.

The plaintiff relies mainly on that class of cases in which a party who has obtained a verdict on defective or insufficient proof of some fact, the existence of which depended on record or documentary evidence, has been allowed to supply the defect on the argument of a motion for a new trial, by producing a properly exemplified copy of the record or document. He cited 2 Sand. S. C. R. 719; 3 Barb. 429; 24 Wend.; 14 Wend. 126; 4 Wend. 591; 13 J. R. 517; 3 J. C. 125; 2 Metcalf, 64.

All of those cases, -except two, (3 Barb. 429, and 24 Wend. 14,) eame before -the--court on a ease made, and not on a bill of exceptions,--or upon a writ of error. In all-of them the defect was supplied on the argument, and before a decision was made by the court in -lane. And in all of them the point defectively proved at the trial was capable of being proved by -record evidence, which could not have been controverted had it been produced at the proper time, and evidence of the latter kind was produced and received on the argument in opposition to the motion for a new trial. It 'has -been expressly deeided, that .that rule does not apply to a bill of exceptions. In Hart v. Coltrain, (24 Wend. 14,) the court stated the rule in-these -terms-:

“A motion for a new trial,-on a case made, is addressed to the sound discretion of the court-; and where the party relies on some defect in the proofs, which .is afterwards supplied by evidence which could not have been -controverted had it been produced at the proper time, and-the court see that a new trial could be of no use, the motion would be denied. (Burt v. Place, 4 Wend. 597, and cases cited.) But tbis rule does not apply to a bill of exceptions, and we cannot look into tbe affidavit.”

In that case an exemplification of an affidavit made by an administrator before a Judge of tbe Court of Probate was produced at tbe argument, wbicb, it was claimed, was sufficient to confer jurisdiction to make an order, tbe validity of wbicb was questioned at tbe trial, on tbe ground that it was not then shown that jurisdiction to make it bad been acquired. But as tbe cause was before tbe court on a bill of exceptions, and not on a case, tbe court refused to look at tbe exemplified copy, and ordered a new trial.

In Dresser v. Brooks, (3 Barb. 429,) tbis distinction does not appear to have been adverted to, and no reference is made to Hart v. Coltrain. Tbe only decisions cited are, 14 "Wend. 126, 13 ib. 524, and 5 ib. 535. In those causes tbe defeated party moved for a new trial on a case.

It may perhaps be said of Dresser v. Brooks, that although the report of it shows that exceptions were taken at the trial, yet it does not state that that case came before the court on a bill of exceptions. If before the court on a case, which reserved no right that it should be turned into a bill of exceptions, the decision made in it does not conflict with that made in Hart v. Coltrain. Ve have been referred to no case in which a reargument was ordered to allow such proof to be given after the verdict had been set aside and a new trial granted. Nor have we been referred to any case in which defective proof was allowed to be supplied on the argument of a motion for a new trial, even when such, proof was to be considered by the court only, if the fact to be proved was to be established by the viva voce testimony of witnesses, or by any evidence which in its nature was controvertible.

To allow such a motion, would assume that it was competent and not inexpedient for the court, after reversing a judgment upon an exception taken at the trial, and after both parties bad been heard upon it at the General Term, to vacate the judgment of reversal, and allow defective evidence to be supplied by prooís to be given at the General Term, provided the proofs related to a point upon which evidence was to be given to the court only, and then rehear the appeal and dispose of it as if such proof had been produced at the trial.

Tbe statute requires “ satisfactory proof” to be given at tbe trial; and unless it is there given* tbe party taking such a deposition has no right to read it at all. To grant this application, would be equivalent to bolding that, although there was confessedly no evidence given at the trial of the absence of the witness from the state, yet the court, on appeal, and on reviewing an exception taken to such an 'admission of a deposition, might, without any impropriety, allow witnesses to be examined at the General Term, to prove that, in point of fact, the person who had been examined de lene esse had continued absent from the state, so that his attendance could not be compelled by the ordinary process of law. Whether an appeal at the General Term is from an order denying a motion made for a new trial on a case, or from a decision of questions of law upon a bill of exceptions, we are of opinion that it would be improper, and highly inexpedient, to so extend and apply the rule as it would be necessary to do, to sustain this motion.

The motion is therefore denied, with costs.


text:
    Brahe v. The Pythagoras Association and four others.
    The Superior Court of the city of New-York, has no jurisdiction of an action to dissolve a corporation created by the laws of the state of New-York, and distribute its effects among its creditors through a receiver, or to inquire into the validity of its proceedings to elect its officers, or to restore one unlawfully displaced.
    Under sub. 8 of § 38 of the Code, it has jurisdiction of only those actions in which the corporation is to be proceeded against, and dealt with throughout, as a subsisting corporation.
    Special Term, April, 1855.
    This case came before the court on a demurrer to the- com- - plaint. The Pythagoras Association is a corporation under chapter 319 of the Laws of 1848. - The complaint stated the objects and articles of the association, (which articles provided that the contributions made by a member should be refunded to him ' on being expelled,) what the plaintiff had contributed, his unlawful expulsion, and his right to demand and be paid the sum of $500; that the other defendants improperly managed to procure themselves to be elected trustees — and others to be removed; and also set forth other acts, which, it was claimed, were sufficient to justify a decree dissolving the corporation, and directing its effects to be sold and distributed; and prayed such relief, the payment of the $500, the appointment of a receiver, the removal of the defendants (other than the corporation) from the offices to which they had been elected, and other relief.
    The demurrer to the complaint assigned for cause, that several causes of action were improperly united; that the court had no jurisdiction of any of the causes of action, except to recover of the corporation the $500; and that, to such an action, the corporation was the only necessary or proper party defendant.

      II. S. Bodge for defendant.

      A. L. Robertson for plaintiff.
   Bosworth, J.

Unless this court has jurisdiction of an action or proceeding to dissolve a corporation created by the laws of this state, and distribute its effects among its creditors, through a receiver, or to inquire into the validity of its proceedings to elect its officers, and to restore one unlawfully displaced, there is a mis-joinder of causes of action and of parties.

To an action against a corporation, to recover of it a mere money demand, its officers are .neither necessary nor proper parties.

It is not pretended that this court, prior to the Code, had jurisdiction of any visitorial powers over a corporation, or of any proceeding instituted to obtain a decree dissolving it, and distributing its effects. Such powers could only be exercised by, and such proceedings could be had only in, the court of chancery. (2 E. S. 462 to 472.)

Under the present constitution and the judiciary acts of 1847, the Supreme Court was vested with the general powers and jurisdiction previously possessed and exercised by the Court of Chancery. There is no law conferring any such jurisdiction and powers upon this court, unless they are granted by sub. 3 of § 33 of the Code. Eeading that so as to make its terms confer the most extensive jurisdiction which they are capable of granting, it gives this court jurisdiction of all actions against a domestic corporation, “ upon any cause of action arising thereinthat is, in this state.

These terms are not more comprehensive than those of section 427, which declares, that an action against a foreign corporation may be brought in this court, “ by a resident of this state, for any cause of action.”

I think section 33 includes only such actions as are or may be brought to enforce or protect some right, or redress or prevent some wrong; and as are brought in only those cases in which the corporation is to be proceeded against, and dealt with throughout, as a subsisting corporation.

If these views are correct, the only cause of action stated in the complaint, on which the plaintiff can have relief in this court, is the one on which he bases his claim to recover from the corporation the sum of $500. To an action upon such a cause of action, the corporation is the only proper party. I think the demurrer is well taken. The plaintiff may amend his complaint on payment of costs.


text:
    Hyslop v. Randall.
    A cause of action for a mere tort, in no way affecting property, cannot be so assigned that the assignee can sue in his own name.
    The defendant, as the complaint alleged, falsely and fraudulently represented to A, that B & C were worthy of credit: A, relying thereon, sold goods to B & C, on credit, and was damaged thereby, and assigned the cause of action to the plaintiff. On demurrer to the complaint, hel^d, that no action would lie in the plaintiff’s name.
    Special Term, April, 1855.
    This cause came before the court on a demurrer to the complaint. The latter alleged that the defendant, to induce A, a merchant, to sell goods on credit to B & C, also merchants, falsely and fraudulently represented them to be responsible, worthy of credit, and safe to be trusted; a sale and delivery of goods on credit to B & C, relying thereon; that. B & C were not responsible, or worthy of credit, or safe to be trusted; and their failure and inability to pay, whereby A sustained damage; and a sale and assignment to tbe plaintiff of tbe cause of action against tbe defendant, arising from these false and fraudulent representations.
    Tbe defendant demurred to tbe complaint, and assigned for cause, tbat it did not state facts sufficient to constitute a cause of action; tbat tbe pretended cause of action could not be assigned, so as to give tbe assignee a right to sue in bis own name.

      Wm. 0. Barrett for plaintiff.

      Chas. H. Sunt for defendant.
   Bosworth, J.

Section 111 of tbe Code requires every action to be prosecuted in tbe name of tbe real party in interest. But it also declares tbat such section “ shall not be deemed to authorize tbe assignment of a thing in action not arising out of contract.”

This section was designed, not . only to authorize, but to require, all causes of action which tbe law bad recognized as proper subjects of sale and assignment, to be prosecuted in tbe name of tbe assignee.

It of course includes all such causes of action as arise upon contracts, not negotiable. Formerly they must have been prosecuted in tbe name of tbe assignor. As to all such cases, tbe courts would protect tbe assignee against any contracts affecting them, made between tbe assignor and bis debtor, after tbe latter bad notice of tbe assignment.

To what extent causes of action not arising out of contract merely, but out of actual injuries to property, may be assigned, so tbat tbe assignee may sue upon them in bis own name, has been a vexed question since tbe Code took effect.

In Hoyt v. Thompson, (1 Seld. 347,) Paige, J., says, tbat “ all cboses in action, embracing demands which are considered as matters of property or estate, axe now assignable at law or in equity. Nothing is excluded but mere personal torts, which die with tbe party.-' A claim, therefore, for property fraudulently taken or received, or wrongfully withheld, and even for an injury to either real or personal property, may be assigned.” But as to this question, as well as to some others discussed by him, be distinctly states that he does not.understand any'of his brethren, except the chief Judge, as expressing'any opinion. (Id. 857.)

This opinion, therefore, however great the respect to which it is' entitled, is but the opinion of a single Judge, .and was obiter dictum.

In Hall v. Robinson, (2 Coms. 293,) the decision was put on the ground that the property had not been converted by the defendant, when the plaintiff’s vendor sold it to him. That a sale of it to the plaintiff while in the actual possession of the defendant, gave to the former a good title, and that, upon a demand of it, made after his purchase, and a refusal by the defendant to deliver it, an action could be maintained.

With reference to such a case, Story, J., says, I know of no principle of law that establishes that a sale of personal goods is invalid because they are not in the possession of the rightful owner but are withheld by a wrongdoer. • The sale is not, under such circumstances, the sale of a right in action, but is the sale of the thing itself, and good to pass the title against every person, not holding the same under a bond fide title, for a valuable consideration without notice; and a fortiori against a wrongdoer.” (2 Sum. R. 206-211, the brig Sarah Ann.) On this point see Gardner v. Adams, (12 Wend. 297.)

Mr. Justice Paige does not rest his opinion upon the idea that the Code has enlarged the class of assignable actions, but bases it upon the rules of law and- equity as they existed before the Code was passed. All the assignments in that case were made before the Code was enacted. The only authority cited by him, is The People v. Tioga Common Pleas, (19 Wend. 73.)

In the latter case, the learned Judge who delivered the opinion said, I have not been able to find any case, in England, which, in respect to personal estate, has given the assignees a greater-right- than would go to an executor: none which vests in them a right of action for a personal tort, or indeed for any mere tort; while there are several cases in Pennsylvania which deny that such a right will pass.” (Id. pp. 76, 77.) An action on a penal statute, and an action on the case for a deceit,- are instanced as. .actions which do not survive. (Shoemaker v. Kelley, 2 Dall. 213.)

But an executor or administrator may maintain actions on account of transactions of the testator or intestate in bis lifetime, wbicb tbe latter could not do if living.

If a person disposes of property witb intent to defraud bis creditors, tbe transfer is good as against bimself, and be cannot avoid it. It is difficult to understand on wbat principle bis volunteer assignee could maintain an action to rescind tbe sale and reclaim tbe property. Yet bis executor or administrator may impeach tbe sale and reclaim tbe property, or recover fits value. (Bate v. Graham, 1 Kernan, 240.)

It, therefore, may not be accurate to say, that all causes of action arising out of transactions connected witb personal property, wbicb would accrue to an executor on tbe death of bis testator, may be assigned by tbe latter, while living, witb such effect that tbe assignee can sue and recover in bis own name.

Tbe cause of action stated in this complaint is one of mere tort, not injuriously affecting any property, personal, or real. It may have induced a contract, not witb tbe defendant, but witb others. It does not arise out'of contract. Tbe claim, for tbe goods sold, still continues, unless it is outlawed. But they were not sold to tbe defendant. He received no property from the plaintiff’s assignor, nor tbe proceeds of any property owned by him, nor did be physically injure any such property.

"Wbat be did was a pure naked tort, in no way affecting any specific property. .1 do not think tbe assignee of such a cause of action can prosecute in bis own name.

Tbe plaintiff has not, therefore, stated facts enough to show a cause of action existing in bis- favor against tbe defendant, on wbicb be can maintain an action.

Judgment must be given for tbe defendant

       It is now settled that a claim to damage for the wrongful conversion of personal property, is a chose in action which is assignable. (McKee v. Judd, 2 Kern. 622.) But a right of action, for damages, caused by a false and fraudulent representation of the solvency of the vendee, or resulting from any tort which is purely personal, is not assignable. (Zabriskie v. Smith, 3 Kern. 322 and 332.) Vide also Purple v. Hudson River Railroad Company, supra, p. 14.


author: Hoffman, J. Duer, J.

text:
    Briggs v. Gaunt.
    An application under the Revised Statutes for the consolidation of several actions into one, may be made by the plaintiff as well as by the defendant.
    (Before all the Justices.)
    General Term; June, 1855.
    Appeal from an order at Special Term directing tbe consolidation of two suits.
    Tbe plaintiffs bad brought two actions against tbe defendants, botb upon tbe same contract, but for two distinct instalments accruing upon it. Tbe first suit was commenced on January 8, 1855, at wbieb time tbe instalment sought to be recovered in tbe second suit was not due. Tbe second suit was commenced on tbe 17th February following. Tbe actions were at a considerable distance from each other upon tbe calendar.
    Tbe plaintiffs appbed, upon affidavits showing, in addition to tbe above facts, that their witnesses chiefly resided in tbe state of Rhode Island, for an order consolidating tbe suits, in order that that they might not be at the* unnecessary expense of bringing witnesses on twice.
    Tbe order was granted at Special Term, and tbe defendants appealed.
   Hoffman, J.

Tbe order appealed from in this case, directed, on tbe application of tbe plaintiff, that tbe two actions be consolidated into one, to be prosecuted and defended as such, and that tbe recovery to be bad, and tbe judgment to be entered, in such consolidated action, stand as a recovery and judgment in botb such actions respectively, upon certain conditions imposed upon tbe plaintiffs and afterwards noticed.

Section 88 of tbe article of consolidation, contained in tbe Revised Statutes, provides, that when several suits shall be commenced against joint and several debtors in tbe same court, tbe plaintiff may, in any stage of proceedings, consolidate them into one action, (2 Rev. Stats. 883.) Tbe references by tbe revisors to 1 Revised Laws of 1813, would seem to warrant tbe construction of tbe section to be tbis, that where a plaintiff bad instituted different suits against different obligors, or other parties jointly and severally bable, be could bring all into one action at any stage of tbe action, or could have joined them originally, although be was not obbged to do so. Section 36 of tbe above article gives tbe court a discretion to consolidate actions of tbis nature. It is obvious, therefore, that by tbe letter of tbe statute such a motion as tbe present may be made as web by tbe plaintiff as the defendant. Tbis doctrine has been recognized in several of tbe states.

Tbe consohdation rule, as it was known in tbe older cases in our courts, related to a different proceeding. It was to stay proceedings in several actions against different defendants until tbe determination of one of them, when tbe grounds of suit and defence were tbe same. Tbis practice principahy prevailed in insurance cases, where there were several underwriters in a pohcy, but traces of tbe principle of consolidation are apparent in our courts before tbe statute, and tbe case of Thompson v. Sheppard (9 Johns. 262) seems to have suggested tbe language of tbe act.

We are satisfied, therefore, that there is no reason for restricting tbe construction of tbe statute to motions by tbe defendant. Tbe expediency and justice of many cases warrant its apphcation to plaintiffs also, which it plainly permits.

Tbe order at Special Term will be affirmed, with tbe modification that tbe plaintiff must pay tbe costs of tbe first action down to the order, with $10 costs of tbe motion. No costs of tbe appeal to be allowed to either party.

Duer, J.

That tbe defendant can sustain any prejudice from tbe consohdation of tbe suits against him, has not been pretended, and tbe only question, therefore, is, whether tbe motion can properly be granted upon tbe application of tbe plaintiff. That we ought to grant it, if we have tbe power, we do not at ah doubt.

It cannot be denied, that tbe language of tbe Judges in some of tbe cases to which we were referred, favors tbe inference, that, in their opinion, tbe apphcation, in cases like tbe present, can only be made by a defendant, (19 Wend. 23 ; 4 Hill 46,) but we are persuaded that such was not and could not have been tbe meaning of tbe learned Judges. We are persuaded that they only meant to say, that, according to the usual practice, the application is made by the defendant, not that it is required so to be made by the provisions of the statute.

The question, therefore, that has now been raised, turns entirely upon the true construction of those provisions in the Revised Statutes that relate to the consolidation of causes, (2 R. S. on p. 883,) and is unaffected by any prior decision.

The statutory provisions, it seems to us, are free even from a shade of ambiguity. They relate to two different classes of action; the first, where the suits to be consolidated are between the same parties, but the causes of action although capable of being united, are in themselves distinct. The second, where there are separate suits against several defendants, who are jointly and severally liable upon the same instrument or contract; that is, where in each suit the defendant is a different person, but in all the cause of action' is the same. It is to the first class of actions that section 36 of the statute exclusively relates, which declares, that “the court in which the several suits are prosecuted, may, in its discretion, if it shall appear expedient, consolidate them into one action;” and it is the seeond class that section 38 alone embraces, which declares, that “the plaintiff may consolidate the several suits in any stage of the proceedings.”

The distinctions between these sections and the reasons upon which the distinctions are founded, are manifest. When there is a joint cause of action and a joint defence, although the defendants are different, it would seem that there ean be no just reason' for opposing or denying a consolidation. Hence, in these cases, there is no appeal to the discretion of the court, but the power of consolidation is given to the plaintiff as a positive right. But when, although the parties are the same, the causes of action in several suits are separate and distinct, and, it may be, wholly unconnected, their consolidation into one action, and the consequent necessity of examining and determining all upon one trial, would, in many cases, be a source not only of great inconvenience and embarrassment, but of probable injustice, and hence the statute, with great propriety, requires that the application in all such cases should be addressed to the discretion of the court, and only be granted, when, to the court, it appears expedient.

It is to this last class of cases, tbat wbicb is now before ns belongs ; and tbe argument of tbe counsel for tbe defendant, so far as it was founded on tbe words of tbe statute, and as we understood it, is briefly this: tbat as tbe plaintiff is expressly mentioned in section 38, be is virtually excluded in section 36, and tbat as it was tbe intention of tbe legislature tbat tbe plaintiff should be tbe sole actor under tbe section first named, it was equally its intention tbat tbe defendant should be tbe sole actor under tbe second. We have none of us been able to see tbat there is any ground whatever for attributing this intention to tbe legislature. Section 36 is wholly silent as to tbe party by whom an application under its provisions is to be made, and no reason has been, nor as we think can be, given, why tbe exercise by tbe court of its discretionary powers, may not, with as much propriety, be invoked by tbe one party as by the other. We have no right, we apprehend, to limit tbe discretion of tbe court by imposing a restriction upon its exercise, tbat neither tbe words of tbe statute, nor any reasons of justice or expediency suggest.

Indeed, there are cases, and tbe present is one of them, in wbicb tbe motion to consolidate can only with propriety be granted when it is made on behalf of tbe plaintiff. When tbe debt for wbicb a second action, by tbe same plaintiff, against tbe same defendant,, is brought, was not due when tbe first action, was commenced, it has been held, tbat as tbe effect of a consolidation would be to delay tbe plaintiff’s recovery in tbe first action, tbe motion, when opposed by him, must be denied, (Pierce v. Lyon, 3 Hill 450.) It is evident, tbat if tbe application in such a ease is made by tbe plaintiff, tbe same objection does not lie in tbe mouth of the defendant. He can have no right to complain of a delay wbicb affects only tbe plaintiff, and to wbicb the plaintiff is willing to submit.

Tbe order appealed from, modified as my brother Hoffman has stated, must be affirmed.


text:
    Strong and Smith v. Stevens.
    An answer to a complaint for money lent, which states that defendant gave his check to the plaintiffs for the sum lent, and interest to the time it was given, and that the plaintiffs have not returned it, and that it is still outstanding, but which does not aver that plaintiffs have negotiated it to a third person who holds, or owns it, does not state facts sufficient to constitute a defence. Upon a given state of facts, the law pronounces the same judgment since, that it did prior to the Code. An answer stating only such facts, as under the former system, if set out in a special plea, would have made'the latter bad on general demurrer, according to decisions determining the precise question, is frivolous.
    (Before Oakley, Ch. J., Duek, Campbell, Boswobth and Slosson, J.J.)
    June 25, 1855.
    This case came before tbe court, on an appeal by tbe defendant from a judgment, ordered in favor of tbe plaintiffs, under § 247 of tbe Code, on account of tbe frivolousness of tbe answer. Tbe complaint stated a loan made by plaintiffs to defendant, of $7667⅞⅜, for wbicb sum and interest it prayed judgment.
    Tbe answer alleged tbat a loan of $750 was made on tbe 7tb of August, 1853, and on tbe 30tb of November, 1854, tbe interest' wbicb bad accrued was computed and ascertained to be, including principal, $766⅞, (tbis being tbe identical claim mentioned in tbe complaint,) “and tbe said defendant, at tbe request of tbe plaintiffs, gave and paid to bim, tberefor, a check or bill of exchange drawn by tbe defendant upon tbe Bank of America, in tbe city of New York, for tbe last mentioned sum, wbicb tbe said plaintiffs have not returned or given up to tbe defendant, and tbe same is still outstanding, and tbe defendant therefore denies tbat be is indebted to tbe plaintiffs as alleged in the said complaint.”
    On tbe motion for judgment,-on account of tbe frivolousness of tbe answer, tbe check was produced and offered to tbe defendants to be cancelled.

      Willett and Stephens for plaintiffs.

      M D. Smith for defendant.
   By the Court.

Bosworth, J.

The fact that the defendant gave his check to the plaintiffs for the amount owing to them, on account of a loan previously made, is no bar to an action to recover for the money lent. The plaintiffs cannot recover without producing the check, on the trial, to be cancelled. If they do that, they may recover. Unless, therefore, the answer, in addition to stating that such a check was given, alleges other facts showing affirmatively, that it is out of the possession and control of the plaintiffs, it does no.t state enough to make a perfect defence.

This was expressly decided in Burdick v. Green, (15 J. R. 247,) and substantially reaffirmed in Hughes v. Wheeler, (8 Cowen, 77.)

As a matter of evidence, it would probably be sufficient to prove the giving and acceptance of defendant’s check, or negotiable note, for the amount of the original consideration. If the plaintiffs then failed to produce the check, or to prove that it was lost or casually destroyed while they owned it, a jury might properly find that the plaintiffs had parted with their property in, and control over it. An answer that the plaintiffs had endorsed and delivered it to a third person, who continued to possess and own it, would be supported by such evidence.

The conclusions of law, upon any given state of facts, are the same now as they were before the Code.

We see no grounds for now holding an answer to be good in substance, which merely states such facts, as if contained in a special plea in bar, would make a plea which, under the old system, would have been held bad on general demurrer. A plea containing the facts stated in this answer, would be held bad, not as amounting to the general issue, but because they are insufficient to show the plaintiff has no right to recover. The order appealed from must be affirmed, with costs.


author: Hofpman, J.

text:
    Horn v. Doody.
    In an action for the recovery of specific personal property, with damages for its detention, in case of failure to answer, the damages mnst he assessed by a sheriffs jury, unless a long account be involved, in which case a reference may be ordered. But plaintiff may waive damages, and take judgment for the delivery only.
    (Before Hoffman, J.)
    Special Term, July, 1855.
    APPLICATION for judgment upon failure to answer.
   Hofpman, J.

The action was one of claim and delivery to recover certain articles of furniture and pictures, with damages for the detention. The defendant appeared and demanded a copy of the complaint. This was duly served, and the time for answering or demurring is shown to have expired. Eight days’ notice of an application for the relief demanded, has been duly served. The summons was for the relief demanded in the complaint.

The last clause of the second subdivision of section 246, governs the case. The action is for the recovery of specified personal property, with damages for the withholding thereof. The damages in such a case are to be assessed by a jury, or if the examination of a long account be involved, by a reference. I cannot direct a reference as asked for. There is no account involved. I agree that the plaintiff may take judgment for the delivery of the articles, if he waives the claim for damages; otherwise a jury must assess them. The regular course is to direct an assessment by the sheriff’s jury. (3 How. Pr. R. 423; 1 Code R. 117.) Such will be the order in the present case.

       Can a reference be ordered to assess damages under sub. 2 of § 246, in actions other than those for “ the recovery of money only,” and when such assessment in volves the examination of a long account? — Rep.


text:
    Porter v. Lent.
    “Wiere the complaint prays for an accounting, and judgment for the balance ascertained to he due, instead of for a specific Sum, it is necessary, in case of failure to answer, that an account should be taken by a referee.
    Application to the court for judgment upon failure to answer, may he made at chambers.
    (Before Hoffman, J.)
    At Chambers;
    August, 1855.
    Application for judgment upon failure to answer.
   Hoffman, J.

The summons is for the relief demanded in the complaint, in ease of a neglect of the defendant to answer. The case made by the complaint is, that the defendant was an agent for the collection of rents belonging to the plaintiff; — payments on account are stated, and a request that the defendant would furnish a fall account of his dealings; — his refusal; — the inability of the plaintiff to state the precise sum due, but his belief that such balance is at least $550. The demand is for a discovery and account, and for judgment for such sum as shall be found due upon the said accounting, with interest, and costs of the action. The defendant has not appeared, and application is made for judgment under section 246 of the Code. The plaintiff proposes to take judgment for the sum of $550. The complaint is verified.

I do not think such a judgment is warranted by the Code. The first subdivision of section 246 clearly does not apply. Under that, the summons must contain the amount of the money demanded — certainly under the first clause; probably in all the cases within that section. And again, the case is not within the second clause of such first section, because the complaint is sworn to. Under the second subdivision the court is to be applied to for the relief demanded in the complaint; and here the 275th section is of importance. The relief to be granted, if there is no answer, cannot exceed that which is demanded in the complaint. In other cases any relief may be granted which is consistent with the case made. The second subdivision provides that in other actions the plaintiff may apply to tbe court for tbe rebef demanded in tbe complaint. If tbe taking of an account or tbe proof of any fact be necessary to enable tbe court to give judgment, or to carry tbe judgment into effect, tbe court may take tbe account, or bear tbe proof, or may, in its discretion, order a reference for that purpose. Tbe relief, then, demanded in tbe complaint, defines and limits tbe power of tbe court as to tbe judgment to be given. It is not tbe case .made, but tbe judgment asked for, wbicb controls. In tbe present instance this is for an account and payment of tbe balance, to be ascertained upon it. I think there must be a reference to take tbe account as sought.

Attention has been called to tbe 86th rule of tbe Supreme Court, as implying that applications of this nature must be made at Special Term. In tbe case, also, of Ryan v. Melansvell, (1 Sandford, S. C. Rep. 709,) a similar view was taken; and tbe 47th (present 87th) section of tbe Code was referred to, wbicb directs that judgments upon appeals shall be given at tbe General Term, and all others at tbe Special Term. Tbe case in 1st Sandford was decided in 1848. In 1850 this court adopted, among others, tbe fifth rule, providing that non-enumerated motions will be beard by one of tbe justices at tbe Special Term room and tbe chambers daily, with certain exceptions. For such motions, and for tbe purpose of making all necessary orders,, and giving judgments in causes under chapter first of title eight of tbe second part of tbe Code, a Special Term will be held every day during tbe vacation, at 10 o’clock, A. M. This chapter comprises tbe 245tb, 246th, and 247th sections of tbe Code, and judgments of this nature to be directed at chambers as at Special Term, are now warranted.

       Is not an application “ for the relief demanded in the complaint” an application for judgment ? The court may see that it is necessary some fact should be ascertained to enable it to give judgment, and this necessity may result in an order of reference, to be executed before judgment can be given. By requiring the application to be made “ to the court,” (§ 248, sub. 2,) does not the Code make it indispen-sible, that the application should be made to a Judge, at a term of the court, and not to a Judge at chambers, or out of court? And is not the difficulty obviated by rule 6, of this court, adopted January 18, 1851, which provides, that for the purpose of “ giving judgments in causes under chapter first, title eight, of the second part of the Code, a Special Term -will be held every day during the vacation, at 10 o’clock, A. uV' — JRep.


text:
    Cobb v. Lackey and Brandon.

      Ex parte orders may be granted by any Judge of the court, wherever he may be found, within the territorial limits in which he is authorized to do official acta
    Motions upon notice, or orders to show cause, can be moved in vacation in the absence of the adverse party, only before the justice who sits at chambers, on the day for which the notice is given, or the order to show cause is returnable. Defaults for not making such motions can be moved before such justice only. Chambers, during vacation, is regularly held in the General Term room.
    During term time, motions on notice, and orders to show cause, in the absence of the opposing attorney or counsel, can be moved only before the justice who holds the Special Term. Motions to discharge such notices, or orders to show cause, on account of the default of the party serving them to bring them on, can be made before such justice only.
    When the attorneys or counsel of both parties attend, they may be heard before any Judge of the court who is disengaged.
    But there is but one place where defaults can be taken, on the failure of the attorney serving a notice or order to show cause, to bring on his motion, or on the failure of the attorney, on whom it is served, to appear and oppose.
    At Chambers,
    September, 22, 1855.
    This action was commenced by tbe service of a 'Summons, which stated that a complaint would be filed, and where. The defendants appeared separately, by different attorneys, who gave notice of retainer, but did not, within twenty days after service of the summons, demand, in writing, a copy of the complaint.
    After the twenty days, they demanded a eopy of the complaint, and none having been served, they severally obtained an order requiring the plaintiff to show cause on the 13th instant, why the action should not be dismissed, on account of the plaintiff’s omission to serve a eopy of the complaint on the defendant’s attorney. The 13th was in vacation, and Mr. Justice Bosworth then sat at chambers, in the General Term room.
    The plaintiff’s counsel attended to show cause, and after waiting until twenty minutes past ten, moved Justice Bosworth to dismiss the orders, which he declined doing then, as defendants’ attorneys might soon appear.
    About half-past ten, there being a large number in attendance, Justice Bosworth remarked that Justice Hoffman was in the Judge’s library, and would bear any motions that counsel cbose to- argue before bin.
    Mr. Lossing, a clerk in tbe office of tbe defendants’ attorneys, wbo was present with their papers, understanding that this remark was a permission to move for defaults, as well as to move motions where tbe counsel of both parties.were present, went before Justice Hoffman, and bad orders dismissing tbe complaint granted by default.
    Before granting tbe orders, Judge Hoffman directed the cause to -be called by its title in tbe room ⅛ which Judge Bosworth was sitting, which was done, but .was not beard by plaintiff’s counsel, wbo was there waiting tbe appearance of defendants’ attorneys, and understanding that that was tbe only room in which defaults could be taken — and wbo did not know, or did not recognize Mr. Lossing.
    About ten minutes before eleven, tbe plaintiff’s counsel again applied to Judge Bosworth to dismiss tbe two orders to show cause, by reason of tbe default of- defendants’ attorneys to appear and bring on tbe motions. Tbe Judge told tbe counsel to draw tbe orders, and be would sign a direction to tbe clerk to enter them.
    While tbe orders were being drawn, Judge Bosworth went to another room to bear a concluding argument on a litigated motion commenced on tbe previous day, and adjourned to tbe 13th at 11 A. m. On his leaving, Chief Justice Oakley took .bis place at chambers; and when plaintiff’s counsel bad drawn bis orders, tbe Chief Justice signed a direction to the clerk of tbe court, to enter them.
    Tbe plaintiff now moves to set aside tbe two orders granted by Justice Hoffman, for irregularity. There was some conflict in tbe affidavits upon tbe point, whether tbe orders granted by Judge Hoffman were, in fact, granted on tbe 13th of September.

      Horatio P. Allen for plaintiff.

      Charles W. iSandford for defendant.
   Bosworth, J.

Tbe plaintiff moves to discharge two orders for irregularity. I have no doubt that tbe orders granted by Justice Hoffman on defendants’ motion, and tlxe two granted by Chief Justice Oakley, on plaintiff’s motion, were granted on the 13th of September. There is no doubt that it was regular for the plaintiff to apply to the Chief Justice, and that it was not his duty to have gone into the room where Justice Hoffman was sitting, to avoid the possibility of being defaulted there. It is quite probable, if the case had been called publicly when plaintiff’s counsel applied to Justice Bosworth for the orders subsequently granted by Chief Justice Oakley, that all difficulty would have been obviated.

I have no doubt that Mr. Lossing supposed that those applying for orders on default of the opposite party to appear, might as properly go before Justice Hoffman, as attorneys whose adversaries were present and accompanied them. Justice Hoffman, I presume, would not have granted the orders which he did grant, had he not understood that the motions had been publicly called in the General Term room, and that the Justice sitting there, on account of being fully occupied, desired that he should see that the order to be entered was one justified by the notice of it, and that there was proper evidence of due service of it.

In vacation, the only Justice before whom orders by default can be properly taken, is the one sitting in chambers for the purpose of hearing motions.

In term time, such defaults can only be granted by the Justice holding the Special Term in the room which he occupies for such business.

■ When counsel of both parties attend, they, as well as counsel applying for ex parte orders, may go before any justice who may be in attendance at any of the rooms of the court.

I think the two orders granted by Justice Hoffman should be vacated, but without costs, and on condition that plaintiff stipulate to vacate the orders granted by Chief Justice Oakley, and attend upon the orders to show cause which were returnable on the 13th instant, to the end that a hearing may be had thereon on such day as the counsel may name, or if they do not agree in relation thereto, as the court may designate.

       This case is reported in order that the profession may he advised of the practice of the Superior Court, as to granting motions hy default. Although the practice is uniform, it does not seem to he veil understood, and much confusion results, which might he avoided, if it was home in mind.


author: Oakley, Ch. J.

text:
    Bowie v. Brahe.
    The court, -on motion of the plaintiff in an action of ejectment, will not order the sheriff to execute a writ of habere facias possessionem, in a particular manner, as to Temove from a strip' of land, one and seven-eighths inches wide:; (the land recovered,) so much of the wall of a building of the defendant as stands upon it. If he refuses to return the writ, the court will coerce a return.
    He must act on his own responsibility, in executing process: the court will not direct the manner of executing it. When the writ is returned, if the return is deemed false, the plaintiff must seek redress by action, or otherwise, as ’he may be advised.
    At Chambers;
    Oct. 6, 1855.
    The plaintiff moves for an order directing the sheriff to execute a writ of habere facias possessionem, in a particular manner.
    Plaintiff and defendant owned adjoining lots. Defendant erected a building on his lot, and encroached one inch and seven-eighths of an inch on the eastern side of plaintiff’s lot. Plaintiff then built on his own lot, placing his easterly wall directly against the westerly wall of defendant’s building. He subsequently brought an action of ejectment to recover the one and seven-eighths inches, and obtained judgment.
    A writ of possession was issued to the sheriff. Plaintiff required the sheriff to deliver possession, by removing from the strip of land, so much of the wall of defendant’s building as stood upon it, but forbid the sheriff’s interference with plaintiff’s building, in doing it.
    The defendant informed the sheriff that he claimed no property in, or control Over the strip of land, or the part of the wall covering it, but forbid the sheriff interfering with his building, or any part of the wall, except what stood on that strip.
    The plaintiff was put as fully in possession as he could be, unless he had a right to require the sheriff to remove, from the strip recovered, the wall standing upon it. The plaintiff now moves for an order requiring the sheriff to execute the writ, by removing from the land recovered, so much of the wall of defendant’s building as stands upon it.
    The sheriff has not yet returned the writ.

      O. P. Kirkland for plaintiff.

      A. J. Vanderpoel for the sheriff.
   Oakley, Ch. J.

The court mil not direct the sheriff in what manner he shall execute process. This is regarded as an application made with a view to obtain the advice of the court. The court should not advise the sheriff, by ordering him to do particular acts, as being essential and proper, to- the rightful performance of his duty. Although so ordered,, he might be prosecuted for his acts, and the court might be placed in the position of being required to give judgment upon a matter which it had prejudged, without due consideration, and the sheriff might be subjected to damages for obeying an order, and that too by the judgment of the court, in obedience to whose order the acts were done.

The sheriff must act, under the advice of his counsel, on his own responsibility. If he should refuse to return the writ, the court would compel him to do it. When he has made a return, if the plaintiff deems it false, he must seek his remedy by action, or otherwise, as he may be advised. The motion must be denied.


author: Campbell, J.

text:
    Vandevoort v. Palmer, Cook & Co.
    It is no objection to an application to remove a cause from a State Court into the Circuit Court of the United States, that the petition is not signed by the petitioner, nor that the bond is not signed by him, but is signed by sureties only.
    When the action is against a firm, and is commenced by service on one only, if all the defendants are citizens of another state, and the plaintiff is a citizen of thi3 state, it is not necessary that any defendant should petition except, the one served, nor that the bond should be conditioned for-the appearance of any defendant, except the petitioner.
    (Before Oaklet, Ch. J., Campbell, Boswortb, Hoffman and Slosson, J.J.)'
    Oct. 26, 1855.
    This is an appeal from an order of Mr. Justice Boswbrth, directing this action to.be removed into the Circuit Court of the United States, for the southern district of New York.
    The action was commenced against Palmer, Cook & Co. as partners, by force of a summons on Palmer only. All of tbe defendants are citizens of California, and tbe plaintiff is a citizen .of Hew York. Tbe petition of Palmer, to.remove tbe action, was not signed or verified by him, but was signed by bis attorney, wbo appeared, at tbe time of filing, tbe petition. It was verified by an agent in fact. ' Tbe bond tendered was not signed by Palmer, but by sureties only, and was conditioned for bis appearance, and not for that of tbe other defendants, wbo bad not been served with process. Tbe motion was opposed on substantially tbe same grounds as are stated in tbe points of tbe plaintiff on tbis appeal.

      S. P. Nash, for plaintiff and appellant,
    argued tbe following points:
    The defendants were sued as copartners, composing tbe firm of Palmer, Cook & Co., but only Palmer was served with tbe summons.
    He applies to remove tbe case to tbe United States Circuit Court, on tbe ground that tbe defendants are citizens of California.
    , I. Tbe appearance entered bere is by Palmer alone for bimself only, and the bond filed by him is conditioned only for his appearance in the United States Court. But the case cannot be removed unless all tbe defendants appear. (Law’s Practice, 145-6; Smith v. Rives, 2 Sumn. 838, 347-355; Ward v. Arredondo, Paine, 410; Beardsley v. Torrey, 4'Wash. 286, 288; Suydo.ru v. Smith, 1 Denio, 263; Norten v. Mayes, 4 id. 245.)
    n. Tbe petition was not signed by tbe petitioner, nor verified by him. It was signed by an attorney at law, as bis first act in the cause, and sworn to by a financial agent of Palmer, Cook & Co. Neither is tbe bond executed by him. Yide Roberts v. Car-rington, 2 Mall, 649.
    The cause should therefore be retained.

      M. Seeley, contra.

   By the CoüRT.

Campbell, J.

The action is brought, or appears by tbe summons, against tbe firm of Palmer, Cook & Co., of California, of which firm Palmer alone was served with process. Palmer applied to one of the Justices of this court for an order removing the cause into the Circuit Court of the United States for the southern district of New York, on the ground that’ the plaintiff was a citizen of this state, and he and all the other defendants are citizens of the state of California. The order was granted and is now appealed from.

. The defendant Palmer, having been served with process, and the action being against the partnership firm of which he is a member, there is no difficulty in the way of the plaintiff proceeding to judgment under the statute of this state which authorizes judgments in such cases, which may bind the partnership property and the separate property of the partner served with process. This same remedy will remain to the plaintiff in the'Circuit Court of the United States. We see no reason why the action may not proceed there in the same manner as in this court. Other parties may be brought in if the plaintiff can serve them, or if not, the action may proceed against Palmer alona

Under this view of the ease we think the Justice had no discretion. When the proper application was made, and a satisfactory bond tendered, the cause was removed by operation of the act of Congress. The only defendant who had been served with process, the only one whom it was necessary to serve, the only one, perhaps, whom the plaintiff may wish to serve, if he were able to serve the others, was before the court by his petition, stating that the matter m controversy was one of five hundred dollars in value, and that the-plaintiff is a citizen of New York, and he, the defendant, as well as all the other defendants, are citizens of the state of California. It will be time enough under such circumstances to consider as to the wish or assent of the other defendants, to such removal'of the cause when they shall have been served with process and shall appear and make the objection.

It is sufficient that the petition is signed by an attorney of the court. The act of Congress does not require the petition to be signed by the petitioner himself. It is also sufficiently verified, and the bond is all that the act requires. The petitioner must give satisfactory security. He has done so, and, as previously remarked, the cause was removed without any order of the Justice. Virtually there was nothing to appeal from. We have thought that though it may not be necessary in all cases to make like orders for removals of causes, yet it is generally prudent and advisable to do so, as it is necessary at least to make an order approving of the security.

The order appealed from must be affirmed.


author: Dues, J.

text:
    Ormsby v. Babcock.
    Where a case was set down for a particular day, and is not reached on that or any following day in the term, the prevailing party is entitled to a term fee, under § 301 of the Code, subdivision 8.
    Special Term, Nov., 1855.
    Application for instructions to the clerk.
    The plaintiff had obtained judgment on a demurrer to the complaint, and on the taxation of his costs, claimed to be entitled to three term fees, of $10 eaeh, which the clerk, unless otherwise directed by the court, had refused to allow. The plaintiff, npon notice, applied for this direction.

      Peck for plaintiff.

      Fullerton for defendant.
   Dues, J.

-The question whether the plaintiff is entitled to the term fees which the clerk has declined to tax, depends upon the construction to be given to subdivision 8; of section 807 of the Code, which gives to the prevailing party $10 for each term at which the cause is necessarily “on the calendar, and not reached, or postponed.”

In this ease the cause was regularly (which I presume is the meaning of “necessarily”) on the calendar at each of the terms for which the disputed fees are claimed; at each, when duly called in its order, by the consent of the parties, it was set down for trial on a subsequent day in the same term, and owing to the precedence thus given to other cases, was not again reached. Was it so “reached," giving a reasonable interpretation to the provisions of the Code, as to bar the claim of the plaintiff?

I Rave consulted my brethren, and we are all of opinion it was not. Is it quite just that no term fee should be allowed when the parties refuse or neglect to try the cause at a term for which it is regularly noticed, but we do not think that there is any such refusal or neglect, if before, or at the time, the cause is reached in its order on the calendar, it is set down by the court at the request of the parties for trial on a subsequent day. We are bound to presume that the parties meant to be, and were, prepared to try the cause on the appointed day, and no lachea is therefore imputable should it not have been reached on that or any subsequent day of the term. A term fee is given to compensate the labor and expense of a preparation for trial, and it ought never to be denied to the successful party when there is no reason to doubt that the preparation was made, and without his fault a trial prevented. When a cause is set down for a particular day, it has no place on the calendar until that day arrives, and until then cannot be said to have been reached. The effect of transferring the cause from its first place on the calendar to a particular day, is precisely' the same as if, by a special order, it had been originally noticed for that day.

The clerk will therefore be directed to allow the term fees which he declined to tax.


author: Duer, J.,

text:
    Livingston v. The Vieille Montagne Zinc Mining Company.
    There can he no right to term fees, until the cause is actually at issue.
    At Chambers,
    Nov., 1855.
    Appeal to the Justice at chambers from the adjustment of the costs by the clerk.
    A copy of the complaint in this action was served on the defendants’ attorneys, February 7, 1855. The plaintiffs’ attorneys extended the time for the defendants to answer from time to time to the 30th day of May, (upon which day the answer was served,) upon stipulations fixing the date of the issue, and allowing the cause to be put-on the calendar. The cause was on the calendar for April, May, and June. Tire defendants .prevailed. The clerk . allowed the defendants the term fees for April and May. From this the plaintiffs appealed.
    A P. Rogers for plaintiffs.

      Wm. H. Foreman for defendants.
   Duer, J.,

(orally.) — The defendants cannot be allowed the term fees for April and May, since had the cause been reached at either of those terms it could not have been tried. The stipulation fixing the date of issue only availed to give the cause a preference on the calendar, if when reached it was in a state to be tried, but did not give either party any right to fees for a term at which no trial could be had. Even if the plaintiffs had prevailed, they would not have been entitled to term fees for April and May. A party has no right to term fees until a cause is actually at issue, whether the date of the issue be fixed by stipulation, and the cause be placed on the calendar, or not.