text:
    Rufus K. Delafield et al., Plaintiffs and Respondents, v. The Union Ferry Company of Brooklyn, Defendants and Appellants.
    1. In an action for damages for injury to property alleged to have been caused, by the negligence of the defendants, it must appear that the plaintiffs’ acts or omissions did not concur or contribute in any degree to the result.
    2. Thus where the plaintiffs’ servants, after nightfall, moved their canal boat from pier to pier, across the mouth of the defendants’ ferry slip, under circumstances malting the attempt somewhat hazardous and liable to delay;

      Held, that their negligence must be deemed to have contributed to a collision resulting from the approach of the ferry boat while the canal boat was being moved; and that a verdict in favor of the plaintiffs could not be sustained.
    (Before Moncrief and Monell, J. J.)
    Heard, January 14, 1863;
    decided, January 31, 1863.
    Appeal by the defendants from a judgment in favor of the plaintiffs, entered on a verdict recovered on a trial of the cause before Ch. J. Bosworth and a Jury, on the 9th and 10th days of June, 1862; and from an order denying a new brial.
    ' The plaintiffs, Rufus K. Delafield and George Baxter, sued to recover damages done to their canal boat, which was run into by a ferry boat of the defendants, in the port of Hew York, in January, 1857. The canal boat had been taking in a cargo at the end of the pier on the southerly side of the defendants’ ferry slip. She had completed loading at the close of the afternoon, and was lying across the end of the pier. The captain, immediately after the ferry boat left the slip, commenced to haul his boat across the slip to a berth on the northerly side of Pier 36.
    The following facts were clearly established. Each ferry boat was making three trips an hour. The captain of the canal boat knew that the ferry boats were passing to and fro regularly, and that a ferry boat was soon expected to return, and that vigilance and industry on his part were necessary to enable the canal boat to he drawn across the slip before the ferry boat would return. There was no evidence that those in command of the ferry boat had knowledge or reason to suppose that the canal boat was being hauled, or would be attempted to be hauled, across the slip while the ferry boat was passing from the Brooklyn to the New York side.
    The captain of the canal boat stated that he saw the ferry boat when she left the Brooklyn side, and, of course, knew that she was approaching. But there was no evidence given to show that the men in charge of the ferry boat, had then attention been directed to the fact, when she started from the Brooklyn side, could have seen the canal boat. The men in charge of the ferry boat testified that they did not see the canal boat until within a short distance—two or three boat lengths — when it was too late to avoid the collision. The ferry boat had lights, but the canal boat showed none. At the close of the evidence, the defendants moved to dismiss the complaint, on the ground that there was no evidence of carelessness or negligence on the part of the defendants, and that the evidence showed negligence on the part of the plaintiffs contributing to the injury.
    The Court denied the motion, whereupon the defendants excepted.
    The Court instructed the Jury, among other things, to inquire whether there was any negligence in the management of the canal boat which contributed to produce the injury? “And if there was fault or negligence on his part, in that regard, which contributed to produce the injury, then the plaintiff cannot recover, even though you should find that there was some negligence on the part of the managers of the ferry boat.
    “ In short, to justify you in finding a verdict for the plaintiff, you must be satisfied that the collision was produced by the negligence of the managers of the ferry boat, without any negligence on the part of the captain of the canal boat, which tended to produce the injury.”
    The Jury rendered a verdict in favor of the plaintiffs for the sum of $2,070.26.

      B. D. Silliman, for defendants, appellants:
    Insisted that the verdict was against the weight of evidence, and cited Wilds v. Hudson River R. R. Co., (24 N. Y. R., 430;) Johnson v. The Same, (20 Id., 76;) Haring v. N. Y. & Erie R. R. Co., (13 Barb., 9;) Munger v Tonawanda R. Co., (4 Comst., 349;) Kelsey v. Barney, (2 Kern., 425;) Griffin v. The Mayor, &c., (5 Seld., 456.)

      H. G. De Forest, for plaintiffs, respondents:
    Argued that under the instruction of the Court the Jury had found that the plaintiffs’ servants were not guilty of any negligence contributing to the injury, and that their finding was sustained by the evidence; the rule making a steamer prima facie chargeable with negligence in case of collision being applicable in this case. (Steamer Oregon v. Rocca, 18 How. U. S., 570; N. Y. & Liverpool Steamship Co. v. Rumball, 21 Id., 372; St. John v. Paine, 10 Id., 581; and see general rules of navigation, 1 Pars. Mar. Law, pp. 192, 193, 194, text and notes.) And that the evidence being conflicting, the verdict should not be disturbed; citing Brooks v. Christopher, (5 Duer, 216;) Hazetti v. N. Y. & Harlem R. R. Co., (3 E. D. Smith, 102;) Hoogland v. Wight, (20 How. Pr., 70.)
   By the Court—Moncrief, J.

The law, it is conceded by the learned counsel for the respective parties, is well settled that in an action like the present, claiming damages for injuries received, as .alleged, by the negligence, &c., of a defendant, it must appear that the result complained of. was not in the slightest degree occasioned or contributed toward by the complainant. If it be true that in any degree both parties concurred in the want of care, it must necessarily follow that the accident cannot justly be said to have arisen from the negligence of one or the other solely, and of. course an action cannot be maintained by either party upon the' ground that his adversary caused the damage. (Wilds v. Hudson River R. R. Co., 24 N. Y. R., 430; Ernst v. Same, 24 How. Pr., 97; 8 Com. Bench, N. S., 568-572.) The application of this plain principle requires the plaintiffs in this action to establish that the damages they have sustained not only arose from negligence on the part of the defendants, for such is the distinct averment in their complaint, but also, assuming that fact to have been proven with sufficient clearness to be submitted to the Jury, that the plaintiffs themselves were without fault. The proof of want of due care and caution on the part of the plaintiffs, it seems to me, is most abundantly shown throughout the case. As owners of the canal boat, they or their servants and agents knew of the existence of the ferry, and had ocular demonstration of the frequent, uninterrupted, regular trips o'f the ferry boats. Their boat had no light-; the attempt was made to haul their canal boat by hand from one dock to the other, at dusk or after dark, without notice to the defendants’ servants of their intention, with full knowledge of the tide being against them while hauling the canal boat, and that their act might be attended with some delay. (Steves v. The Oswego & Syracuse R. R. Co., 18 N. Y. R., 422, 426, 427.) It was an unusual step to take at the time of its attempt. Eo prudent man having a just regard for his property, would take such a risk under circumstances requiring no haste; and in case of an exigency, reasonable caution would have led him to make known his intention to cross the entrance to the ferry. Having finished the loading of their canal boat about half-past four or five and at a period of the year when it becomes dark about the latter hour, the boat then lying bow out, at the side of a pier, the plaintiffs made the attempt “a little before or after five” perhaps, to change position and get into line with the opposite pier to which it was intended .the canal boat was to be hauled and fastened. How long a time it required to execute this necessary preliminary movement or at what time the canal boat began her journey across the mouth of the ferry slip, does not appear by any testimony on the part of the plaintiffs; the evidence on the part of the defendants clearly shows the time of the accident to have been about seven o’clock. As the canal boat commenced hauling across the slip immediately after a ferry boat went out of the slip and was within 15 or 20 feet of being out of danger of collision before being struck, it is plain that the plaintiffs began to haul their boat long after dark, against the tide and floating ice, at the risk of having their hawser break and casting adrift, knowing the constant plying to and fro of the ferry boats, without a light on board and without the slightest intimation to the defendants. The captain of the canal boat had full knowledge that at best it was a most hazardous experiment; his testimony clearly establishes this fact. A verdict finding that such conduct was not wanting in due care and prudence and was not contributive to the injury which happened, in my opinion, is plainly against evidence and should be set aside. As it appears that the defendants asked the learned Chief Justice to dismiss the complaint upon the ground now presented as the reason for reversing the judgment, a new trial should be directed, with costs to abide the event of the action. (Brown v. Bradshaw, 1 Duer, 199, 206; Goodyear v. Ogden, 4 Hill, 104; Wright v. Orient Mut. Ins. Co., 6 Bosw., 269-280.)


source: Caselaw Access Project

author: By the Court—Monell, J.

license: Public Domain

text:
    Theodore Moss, Plaintiff and Respondent, v. Leonard W. Jerome, (who was impleaded with William Stuart et al.,) Defendant and Appellant.
    1. Where several persons engage in an enterprise, one of them agreeing to assist by advancing money, and to share in the losses, if any, but not to receive any part of the profits, which are to be divided among the others exclusively, although such one is not to be deemed a partner as between the others and himself, nevertheless, if he holds himself out or allows himself to be held out as a partner, to a third person, who, under the belief that he is such, enters into a contract with them, he is liable ' upon such contract.

      2. Upon such a contract, notwithstanding that it was joint, a recovery may be had against one alone; and this although another of the debtors has been released by the plaintiff upon a compromise under the Joint Debtor Act.
    (Before Moncrief and Monell, J. J.)
    Heard, January 15, 1863;
    decided, January 31, 1863.
    Appeal by the defendant, Jerome, from a judgment in favor of the plaintiff, entered upon the report of James Maurice, Esq., Referee, to whom the issues in the action were referred.
    The complaint in this case alleged as the cause of action, that in July, 1857, the defendants, who were Leonard W. Jerome, William Stuart and Dion Bourcicault, were jointly engaged as copartners or otherwise in the management and conducting of a place of public amusement called the “ Academy of Music,” in the City of Hew York. That the plaintiff was in the employment of the defendants, and while so employed, was engaged in receiving and disbursing moneys on their behalf and at their request in said business. That the plaintiff in the course of such employment, paid out divers sums of money upon the request of the defendants, and upon their promise to refund and pay the same to him ; that upon such request and promise, the plaintiff paid out and expended on behalf of the defendants, the sum of $1,464.17 which they refused to pay. .
    The plaintiff demanded judgment against the defendants Jerome and Stuart only.
    The defendant Jerome, only, answered, and denied all the allegations in the complaint.
    Upon the trial, it appeared that the defendant, Bourcicault, had been discharged by the plaintiff upon a compromise under the Joint Debtors’ Act.
    The Referee found as facts, that in July, 1857, the defendants determined upon introducing a novel kind of public amusement, called promenade concerts, at the Academy of Music; that Bourcicault was to have the general management and direction of the enterprise; Stuart was to have the management of the finances, and Jerome encouraged them to go on, agreed to back them up, so far as to share, in case of failure, all the losses, but the profits were to be divided exclusively between Bourcicault and Stuart, Jerome refusing to participate in them. That the plaintiff was employed by the defendants to receive the money taken by the house, and to pay the current expenses; that he expended for various purposes connected with the enterprise, the sum of $5,223.17, and received (in receipts from the house and two sums of $1,000 and $500 respectively paid to him by Stuart) the sum of $3,759, leaving $1,484.17 due.
    Upon these facts, the Beferee adjudged that the plaintiff -was entitled to judgment. The defendant excepted.

      Jasper W. Gilber, for defendant Jerome, appellant.
    I. The action being joint against three, upon an alleged joint obligation, the recovery against two was erroneous. (Bovill v. Wood, 2 M. & S., 23; Hawkins v. Ramsbottom, 6 Taunt., 179.)
    II. No relation, or quasi relation of partnership, subsisted between Mr. Jerome and the other defendants, for there was no community of profits. (3 Kent’s Com., 25; Story on Part., § 46, n. 1; §§ 54, 59, 60, 61; Pars. Mer. Law, 164; 1 Pars. on Cont., 133, 134; Wilson v. Whitehead, 10 Mees. & Wels., 503.) The declarations of Bourr cicault or Stuart do not bind Jerome.
    III. Eor can the judgment be sustained on the ground that Jerome held himself out as a partner, or quasi partner. There is no such finding, and no evidence to warrant it. (1 Lindley on Part., 34 to 53; Story on Part., § 64, 65; 1 Pars, on Cont., 166, 167, 146-151.) And the plaintiff had constructive notice that Mr. Jerome was not a partner. (Pringle v. Phillips, 5 Sandf., 171; Williamson v. Brown, 15 N. Y. R., 362; Bromley v. Elliott, 38 N. H. R., 287.)
    IV. If the Referee intended to find that, in fact,- the employment of the plaintiff was by the three defendants, his finding is not only unsupported by, but is manifestly against the evidence. See Wood v. Duke of Argyle, (6 Man. & Gr., 928,) and Lake v. Same, (6 Ad. & El., N. S., 477,) where opposite verdicts were sustained upon precisely the same facts.

      O. D. Sivan, for plaintiff, respondent:
    As to the question of liability, cited Beach v. Raymond, (2 E. D. Smith, 496.)
    As to the recovery against one of several joint defendants, cited 1 Sandf., 207, a, n. 2; 3 Esp., 77; 2 M. & S., 23, 444; 1 Chitty on Pleading, [Perkins ed.,] 45, tit. Misjoinder; Code, §§ 169, 170, 171, 176, 274; 2 Rev. Stat., 424, § 7; Claflin v. Butterfly, (5 Duer, 327;) Brumskill v. James, (1 Kern., 294.)
   By the Court—Monell, J.

I think it is clear that the defendants, inter sese, were not partners. The arrangement between them lacked the communion of “ profits ” without which a partnership inter sese cannot exist. (Collyer on Part., § 19; Story on Part., §§ 46, 54, 59, 60, 61; 1 Pars, on Cont., 133, 134.) Jerome had no right to the profits, having agreed at the outset of the enterprise that they should be divided exclusively between Bourcicault and Stuart; nor could he be made liable, as between himself and Bourcicault and Stuart, for the losses, his promise to share them being without consideration and void.

If, however, the defendants held themselves out to the plaintiff as partners, and he entered upon his employment under the belief that they were such, then, although in fact as between themselves, they were not partners, still the defendant Jerome would be liable upon all the contracts of the firm made with the plaintiff.

The Referee has not found that there was a partnership, but that there was a joint entering upon the enterprise by the defendants and a joint employment of the plaintiff; and, as I understand his conclusion, he rests his decision upon these facts and not upon any supposed or quasi partnership between the defendants.

If the evidence warrants the conclusion that the defendants jointly employed the plaintiff, then the defendant Jerome is liable, whether a partner with them or not, provided the claim be such as is embraced within the promise, express or implied, of the defendants. It becomes necessary, therefore, to look at the evidence to see whether the Referee’s conclusion is supported by the proofs.

The plaintiff testified that he was engaged as treasurer for three partners, Stuart, Jerome and Bourcicault, and that he was employed by the defendants. Again, he says that he was requested by all three to act as treasurer; that they were to go in equal, to share the losses and profits, and that Mr. Jerome was in the habit of going to the treasurer’s office. He testified to .several interviews between the defendants, when the subject of the concerts was discussed, and in which Mr. Jerome participated, and that he distinctly recollected that it was agreed that they all should share the profits and losses.

Robert Stoepel testified, that he was the musical director of the concerts; that he was at Mr. Bourcicault’s house, before the concerts commenced, when Mr. Jerome was present; that Bourcicault asked witness to act as musical director; that witness asked Mr. Bourcicault if it was his own undertaking, and he replied that it was a partnership between Stuart, Jerome, and himself; that Jerome was within hearing of the conversation, which was loud enough to be heard by all.

William Stuart, one of the defendants, called by the plaintiff, testified that Mr. Jerome, Mr. Bourcicault and himself, were supposed to furnish the means of carrying the concerts on; that Mr. Jerome was not to share in the profits, but was to share in the losses; that he backed the enterprise up in a spirit of friendship toward Mr. Bourcicault and himself. In answer to the question “were there any other partners in the undertaking ?” the witness said “no, none except us three." He further testified: that the plaintiff was employed to receive the money at the door, and to make disbursements of current expenses. He said “Jerome did actually bear his share of the losses; they were divided into three parts and he gave his cheek for one ” of the parts.

The evidence, on the part of the defendant, Jerome, was intended to, and, as I think, did clearly establish that Jerome was not a partner, inter sese; that he was not to share in the profits, and that he agreed to bear a third of the losses merely in a spirit of friendship to help along the enterprise. Mr. Bourcicault says, in his testimony, that himself and Mr. Stuart were the parties to the arrangement under which the concerts were to be given. And the defendant, Jerome, testified that there was not any agreement or understanding between him and Stuart and Bourcicault, or either of them, or any other person, at any time or in any form, by which he was to participate to any extent, in any profits which might result from the enterprise; that he simply told Mr. Bourcicault and Mr. Stuart to go ahead, and that he would assist them, back them, and stand by them; that it was purely a matter of friendship.

The testimony of Bourcicault and Jerome, that Jerome was not to share in the profits, is sustained by Stuart, and not contradicted, except by the plaintiff, whose testimony, on that subject, is inferential merely, and not positive.

The evidence, therefore, that a partnership, inter sese, did not exist, is satisfactory, and must be deemed conclusive.

It is to be observed, however, that here the defendant seems to have stopped; for I do not find any evidence to contradict the plaintiff’s employment, nor the plaintiff’s claim that the defendant, by his acts, declarations and admissions, held himself out to the plaintiff as a partner. The plaintiff testified that he was employed by Stuart, Jerome and Bourcicault, to act as treasurer; he also testified to interviews between the three parties, in which the subject of the concerts was discussed. Mr. Stoepel testifies to the declaration of Mr. Bourcicault, which he says was within the hearing of Jerome, that it was a “partnership” with Stuart, Jerome and himself. None of this testimony is any where contradicted. Mr. Jerome, who was examined on his own behalf, was not asked whether these statements were true, nor did he give any testimony on the subject; and Mr. Bourcicault’s evidence, although taken conditionally before the trial, is equally silent.

It must, therefore, be deemed to be conceded that there was some evidence that the defendant, Jerome, held himself out to the plaintiff as a partner; and I think there was sufficient evidence, on that branch of the case, to sustain the conclusion of the Referee that the plaintiff was entitled to judgment against the defendant Jerome. If it was untrue, Jerome, who had the opportunity, could have contradicted it, and not having done so, he is bound by the effect which the law gives to his silence.

The objection that a recovery could not be had against two of several defendants where the suit and cause of action was upon an alleged joint contract of three, was not well taken. Under the Code such a recovery and a judgment thereupon is proper. (Brumskill v. James, 1 Kern., 294; Claflin v. Butterly, 5 Duer, 327 ; M’Kensie v. Farrell, 4 Bosw., 192; Pruyn v. Black, 21 N. Y. R., 300.) Besides, the release under the joint debtors’ act, (Laws of 1838, ch. 257,) discharged Bourcicault only, and not the other joint debtors, whose liability continued notwithstanding such discharge.

The judgment must be affirmed.


author: By the Court—Moscrief, J.

text:
    Charles H. Winfield, Plaintiff and Respondent, v. Samuel B. Potter, Defendant and Appellant.
    1. Where the parties to a sale agree that the vendee shall, as a part of the consideration moving from him, pay a debt due from the vendor to a third person, a promise of payment made by the vendee to such third person, pursuant to the agreement, is not within the statute of frauds.
    2. Thus where persons holding a contract for the supply of certain merchandise to the government, which was to be subject to inspection, delivered a part of the goods, and pledged the government receipts therefor, to the plaintiff as security for a debt due to him, and subsequently assigned the contract to the defendant, in consideration, among other things, of his assuming to pay all their debts, and the defendant, in order to obtain the receipts pledged, so that he might effect a settlement with the government, gave to the plaintiff a written promise that he would pay the amount of the debt whenever he received certificates from the government for the payment of so much upon the contract, in consideration that the plaintiff should aid in procuring the inspection and acceptance of the goods, without charge, and the plaintiff at the same time gave to the defendant a written promise to assist him accordingly without charge;

      Held, that the promise to pay the plaintiff was not void under the statute of frauds. 1. Taken together these two instruments expressed a consideration. 2. Such a contract is not to be deemed an undertaking to pay the debt of another within the statute. It is to be regarded as assuming to pay a lien upon being put in possession of the indicia of title.
    (Before Moncrief and Monell, J. J.)
    Heard, January 16, 1863;
    decided, January 31, 1863.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial.
    Frederick F. Betts & Co., on the 24th of August, 1861, entered into a contract with the United States for the manufacture and delivery to the government of five thousand sets of military equipments. They proceeded under this order or contract, and had made and delivered a large part of the goods, when, on the 7th of October, 1861, they sold out to Potter, the defendant in this action, all their assets, including goods manufactured, and all their right, title, and interest under the contract, in consideration of the sum of $8,000, (which Potter had previously loaned them,) and an agreement by Potter that he would pay the debts of Frederick F. Betts & Co.
    At this time the firm of Frederick F. Betts & Go. were indebted to one H. B. Hart, for money which Hart had previously loaned them to carry on this business, in the sum of $1,125, for which Hart held the firm note; and, as collateral security for its payment, he also held at that time quartermasters’ receipts for fifty cases of goods which Betts and Co. had delivered to the government under their contract.
    On the 10th of October, 1861, three days after Potter bought this contract and property of Betts & Co., and while the contract was in full force, he applied to Hart to get these rebeipts, which Hart held as collateral security for his demand. Hart agreed to surrender the receipts, upon Potter’s giving him a Avriting to pay the debt due from Betts & Co. to him, and Potter gave him the following writing:
    “ I, Samuel B. Potter, agree, that whenever I receive a “ certificate or certificates from the Government of the “ United States, or its officers, under or in pursuance of a “ contract between Frederick F. Betts & Co. and the Gov- “ eminent of the United States, for the making and “ delivery of five thousand sets of military equipments, for “ the whole or any portion of the sum agreed to be paid by “said Government, or the whole or any portion of the “ property so furnished, then I will deliver to said H. B. “Hart, Esq., eleven hundred and twenty-five dollars, pro- “ vided I receive certificates to that amount ,* which is in “ consideration that said Hart shall aid me in procuring “ the inspection and acceptance of said military equip- “ ments Avithout charge, less disbursements.
    “ Mew York, Oct. 10th, 1861.
    “ §1,125. SAMUEL B. POTTER.”
    Hart, at the same time, and as a part of the same agreement and transaction, made and delivered to Potter, the defendant, the following writing:
    “ Mew York, October 10th, 1861.
    “ I hereby agree to aid and assist Mr. S. B. Potter, the “ representative of F. F. Betts, to the best of my ability “ in getting his goods examined, as per contract with the “ United States Government, for (5,000) five thousand sets “ military equipments, made by said U. S. to Messrs. F “ F. Betts & Co., without charge.
    “ H. B. HART.”
    Subsequent to this transaction, Potter surrendered to the government the original order or contract, which he purchased, and had it canceled, and took an order directly to himself, for the same articles, which substituted order or contract did not differ from the one canceled, in any respect, except running to Potter instead of Betts & Co. By its terms, the government agreed to take the goods already manufactured and delivered under the first order of Betts & Co., in fulfillment of “ the order."

    It appeared that after Potter obtained this new order, he expended between $3,000 and $4,000 to complete the goods already nearly finished under the first order, and in Hovember, 1861, he received from the government a certificate for $17,412.50, which certificate included all the goods delivered to the government by Frederick F. Betts & Co., on their order before they sold out to Potter, and also the fifty cases which Hart gave Potter the receipts for.
    Hart subsequently assigned the contract of Potter, upon which the suit was brought, to Frederick B. Betts, who in turn assigned it to the plaintiff in this action.
    This action was tried on the 28th of October, 1862, before Chief Justice Boswobth and a Jury.
    In the course of the direct examination of Hart as a witness on the part of the plaintiff, when he was testifying in relation to his having exerted himself to aid. in getting the goods inspected, the defendant’s counsel objected to the testimony, and moved to dismiss the complaint, on the ground that no consideration was stated in the agreement. The motion was denied and he excepted. Various exceptions were taken to the evidence, which are not discussed in the opinion of the Court. One ground of the defense was the allegation by the defendant that the plaintiff was not the true owner of the agreement. Upon this point the Chief Justice, in his charge, after adverting to the testimony, said:
    “ Undoubtedly, on the evidence for the plaintiff, as it stands, this was a gift by Mr. Betts to Mr. Winfield. We have a little evidence as to the motive — but, assuming it to be a gift, it is as substantially Mr. Winfield’s, and his right to recover it is as strong, as if he had paid $1,125 in cash.”
    To the first sentence of that statement, the defendant’s counsel excepted.
    The plaintiff recovered a verdict for $1,195.83, and after a motion for a new trial had been made and denied, and judgment entered, the defendant appealed, both from the judgment and from the order denying a new trial.

      D. M. Porter, for defendant, appellant:
    Reviewed the various exceptions, and also insisted that the Court erred in not dismissing the complaint on the defendant’s motion therefor, on the ground that no consideration is named in the agreement, because if it was to answer for the debt of another, the consideration must be expressed in the writing. (3 R. S., 5th ed., page 221.)
    There was no consideration expressed in the agreement, because Hart agrees that no charge shall be made for his aid. If it was an original promise to pay Hart, there was jio consideration to support it, because he agreed to perform it without any charge, and gave a stipulation to that effect. By the express words of the statute, the Court is prohibited from finding a consideration outside of the writing itself.

      Ira P. Warren for plaintiff, respondent.
   By the Court—Moscrief, J.

There was no error in denying the motion to dismiss the complaint. The application was made during the progress of the direct examination of a witness, (the assignee of the plaintiff,) interrupting the orderly administration of justice on the trial of a cause; it appears in the double character of an objection to evidence which had been given tending to show performance of the agreement on the part of the assignee of the plaintiff, (Hart,) and of a motion to dismiss the complaint on the ground that no consideration is named in the agreement. The agreement was not void under the statute; taken together, the two instruments constituting the contract, one signed by the defendant and the other by Mr. Hart, a consideration is expressed; besides the agreement cannot, in a just sense, be treated as an undertaking to pay the debt of another; it partakes more of the character of an engagement by the vendee of personal property, upon becoming the possessor of the instrument claimed to be indicia of title, assuming and agreeing to pay to the extent of the alleged lien.

The expression of opinion by the learned Chief Justice, in his charge to the Jury, is well sustained by the testimony and was not error; the question was submitted to the Jury. (Coyles v. Hurtin, 10 Johns., 85-88; Bulkeley v. Keteltas, 4 Sandf., 450-454.) The case was fully and fairly submitted to the Jury, who rendered a verdict for the plaintiff, doing, as I think, justice, between the parties to the action. The other objections and exceptions are embraced by the views expressed with reference to the first exceptions, or so plainly untenable as not to require discussion.

The judgment and the order denying the motion for a new trial must he affirmed.


author: By the Court—Robertson, J.

text:
    Charles A. Manning, Plaintiff and Respondent, v. Patrick Monaghan et al., Defendants and Appellants.
    1. It is not necessary, in order to enable a mortgagee of chattels, whose mortgage has been once duly filed, pursuant to the statute upon that subject, (Laws of 1833, ch. 279, § 1,) to maintain an action against third parties for talcing the chattels out of the possession of the mortgagor, within a year from the filing of such mortgage, and selling them, that such mortgage should be refiled with the statement required by the statute at the end of such year.
    2. A mortgagee of chattels may maintain an action for injury to his reversionary interest therein, caused by a sale thereof, under proceedings against the mortgagee while in possession, in separate parcels, to numerous purchasers.
    3. In an action for such injury, it is not necessary for the mortgagee to prove that he has been unable to find such purchasers after diligent search for them.

      4. Proof, in such action, of the purchase of a number of the articles by one person, known to the plaintiff therein, does not render it necessary for the latter to prove a demand by him of such articles from such purchaser, in order to enable him to recover damages for the removal of such" articles, against the sellers. '
    5. The mere presence of the mortgagee at such sale, without objecting thereto, is not a waiver of such right.
    6. Neither a demand by such plaintiff, from the sellers, of the proceeds of such sale, nor his mere commencement of an action against one of the purchasers at such sale, subsequently discontinued, operates as a.ratification of the sale of all such goods or of those sold to such purchasers.
    7. An omission by a plaintiff in such an action, where the sale was made by a Receiver in another action, at the instance of the party thereto, on whose behalf he was appointed, contrary to his duty, under the orders of the Court by whom he was so appointed, to obtain the leave of such Court to commence such action, constitutes no objection to the recovery therein against such Receiver and party by whose direction such sale was made.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J.)
    Heard, February 2, 1863;

    decided, February 21, 1863.
    Appeal by the defendants, from a judgment recovered by the plaintiff against them, after a trial before Mr. Justice Monell and a Jury, on the 8th of January, 1862, and from an order denying a new trial.
    The action was brought against Patrick Monaghan, John Cavanagh and Leonard Gosling, to recover damages on account of the seizure and sale of certain household furniture, which one Schenck had mortgaged to the plaintiff. The mortgage was given to secure SI,070, payable in one year, with a provision that until default, the mortgagor should continue in the full possession and enjoyment of the goods. Within. the year, the defendant, Monaghan, recovered a judgment against Schenck, and on the execution being returned unsatisfied, he instituted proceedings supplementary to the execution, which resulted in the appointment of the defendant, Cavanagh, as Receiver. He took the goods, and caused them to be sold at auction. Gosling, the remaining defendant, purchased a portion of the goods at the sale.
    The action was first tried before Mr. Justice Bosworth and a Jury, in November, 1856, arid, the Jury having passed upon specific questions, the Court directed the questions of law, as far as they related to Cavanagh and Monaghan, the present appellants, to be heard in the first instance at General Term, and that judgment be there applied for in the first instance, and dismissed the complaint as. to the defendant* Gosling. The Court, at General Term, rendered judgment against = the defendants, Monaghan and Cavanagh, and sustained the dismissal of the complaint, as against the defendant, Gosling. (See X Bosw., 459.) Monaghan and Cavanagh then appealed to the Court of Appeals, and the plaintiff also appealed from the judgment of nonsuit, in favor of the defendant, Gosling.
    The Court of Appeals ordered a new trial, as against the present appellants, on the ground that there had been a mistrial. (See 23 N. Y. E., 539.) To avoid all doubts upon the point, as to the question of misjoinder of parties, the plaintiff’s counsel, upon the second trial, discontinued the action as against the defendant, Gosling, and elected to proceed against the present appellants, Monaghan and Cavanagh, alone.
    Upon the second trial, it was admitted that the mortgage was given to secure a just debt, and that there was a good legal reason for permitting the goods mortgaged to remain in the possession of the mortgagor. It appeared from the evidence, that the chattels consisted of various articles of household furniture, carpets, paintings, &e. That the mortgage was duly filed on the 11th of October, 1854, a few days after it was executed. The mortgage was givén to secure payment of a note which was payable in one year from the date of the mortgage.
    The goods in question, comprising the larger part of those included in the mortgage, were taken from the mortgagor’s house by the Eeceiver, the defendant, Cavanagh, at the request and by the direction of the defendant, Monaghan, on the 27th of February, 1855, and were removed to an auction room, where they were sold with other articles, by auction, on the 21st of April, 1855. The plaintiff, the mortgagee, had notice of the sale, and was present, with his counsel, at the sale. The defendants,* Monaghan and Oavanagh, had notice of the existence of the mortgage, at the time they seized the goods, but no notice was given at the sale of the existence of the mortgage. On the 5th and 8th days of October, when the mortgage became due, the plaintiff demanded the property, both from the mortgagor and from the defendants, Monaghan and Oavanagh, and they refused to deliver the same, the defendants stating that the goods had been sold at their request, and that they had not then possession thereof.
    The counsel for the defendants, Monaghan and Oavanagh, then moved to dismiss the complaint as against them, on the following grounds, viz.:

      First. That no proof was given that the defendants, Monaghan or Oavanagh, took the property mortgaged, or any part thereof.

      Secondly. That the defendants, Monaghan and Oavanagh, (even though they took the property out of the possession of the mortgagor,) were not liable to the plaintiff upon the alleged cause of action stated in the complaint, because no proof has been given that either the said Monaghan or Oavanagh had possession or control of any part of it when the mortgage became due.
    The Justice denied the motion, and the counsel for the defendants excepted.
    Some further evidence was then given, showing that there was a large attendance of purchasers at the sale, and that the goods sold well and brought their full value. It was admitted, also, that the mortgage held by the plaintiff had never been refiled.
    At the close of the trial, after the counsel for the plaintiff had elected to abandon his claim and discontinue this action as against the defendant Gosling, and such discontinuance had been accordingly entered by the Court, the counsel for the defendants Monaghan and Oavanagh each moved to dismiss the complaint as against the said defendants respectively, on the following grounds, viz.:

      First. Because the defendant Cavanagh, as Receiver, had a right, when he took and sold as against the plaintiff’s mortgage, to sell and dispose of the goods taken by him, and that the plaintiff, for either such taking or sale, cannot maintain this action as against him therefor.

      Secondly. Because the evidence shows that the defendant had not the goods, or either of them, at time of the demand made therefor by the plaintiff.

      Thirdly. Because the complaint shows that the defendant had not the goods at the time the mortgage became due or after.

      Fourthly. Because the evidence shows that the goods, on the 21st of April, 1855, were in the possession of Irving & Co., the auctioneers, and no proof has been shown of a demand of the same or any of them from them, and that without such demand being made, the plaintiff cannot maintain this action against the defendant.

      Fifthly. That the plaintiff cannot maintain this action as against the defendant without proving efforts to find the goods mortgaged to him, and damages consequent to him thereupon.

      Sixthly. Because no damage to the injury of the plaintiff has been proved against the defendant, and that therefore the plaintiff cannot recover as against him.

      Seventhly. Because no evidence of a demand of, or refusal to deliver the goods by, the defendant Gosling, has been proved, and without such proof the plaintiff cannot recover as against the defendant.

      Eighthly. Because by the complaint it appears that the goods were in the possession of the defendant Gosling, who claimed as purchaser, and that therefore the defendant is not liable.

      Ninthly. Because the plaintiff, by his complaint, has ratified the acts of the defendant Cavanagh, by having demanded from him the proceeds of the sale.

      Tenthly. Because the plaintiff having been notified of the said sale, and having the opportunity to attend the same, and having attended to protect his rights, and assented to the sale, cannot recover against the defendant for merely selling.

      Eleventhly. Because no evidence of the inability of the plaintiff to get the mortgaged goods, having been given, he cannot recover against said defendant.

      Twelfthly. Because the plaintiff, under the complaint and evidence, cannot maintain this action against the defendant Oavanagh, he being Receiver, without having first obtained the order of the Court that appointed him.

      ■Thirteenthly. Because the demand by the plaintiff, on the fifth or eighth day of October, 1854, alleged, and the answer given by the defendants did not constitute a cause of action against the defendant.

      ■Fourteenthly. Because the plaintiff, by demanding the proceeds of the sale and abandoning this action as against the defendant Gosling, has affirmed the act of sale and cannot maintain this action against the defendant.

      Fifteenthly. Because the plaintiff, by not refiling the mortgage within thirty days before the expiration of one year, from the date of filing the mortgage of Mr. Schenck to him, lost his lien upon the property mortgaged as against the defendant.
    The motion was denied on each of the grounds thus successively submitted, and an exception taken to each ruling respectively by the defendants.^
    The counsel for each of the defendants then requested the Justice to charge the Jury as follows:

      First. That it was the duty of the plaintiff to make efforts to get possession of the goods sold from the parties who bought or had them, and /that as no such proof was given, only nominal damages coulci be recovered by the said plaintiff against said defendant.

      Secondly. That the plaintiff could only recover against the defendant for such damages as he could prove had resulted to him by reason of the taking away, selling and scattering the property,, such as the expenses in traveling for, and getting possession of the property and the value of the same, if not found.

      Thirdly. That the defendant is entitled to be credited with the value of the goods purchased by the defendant Gosling.

      Fourthly. That the defendant was not liable unless he had possession of the goods or some part thereof, at the time the mortgage became due.
    The Justice refused each of these requests to charge, and the counsel for defendants excepted to each refusal. In the course of his charge to the Jury the Justice instructed them that if the mortgage was a valid subsisting security in the hands of Mr. Manning, “ then the next inquiry is whether he has, by any act of his, waived that security or consented to the disposition of the property which is covered by it. There is no evidence here of waiver that I am aware of; indeed, there is an entire absence of any act on the part of Mr. Manning, except that which took place at the sale, which can be construed into a waiver, and I may as well here observe, that the presence of Mr. Manning at that time under the circumstances of the case, can in no way affect his rights.”
    At the close of the charge, the counsel for the defendants requested the Justice to charge the Jury that it is for them to determine whether Mr. Manning consented to the sale of the property at that time, and to correct and withdraw that part of his charge where he said “ that there is no evidence of the waiver of Mr. Manning,” and to charge that if Mr. Manning were present at the sale and did not object, it is evidence of an assent; that if the plaintiff was present at the sale and did not forbid the sale, or claim his right as mortgagee, it is evidence of a consent, and the plaintiff is not entitled to recover.
    This request the Justice refused, saying, however, that he was willing to charge that if the Jury come to the conclusion from the evidence in the case that Mr. Manning consented to the sale, that he cannot recover.
    The counsel then requested the Justice to charge that the mere taking could not affect the plaintiff's right as mortgagee.

      The Court answered, “ It was the taking followed up by the selling in the manner the property was sold,” and refused to correct the charge in any other respect. The counsel for the defendants excepted to these refusals.
    The Jury found a verdict for the plaintiff for $1,368.06. The defendants moved for a new trial, which was denied and judgment having been entered they each appealed.

      Francis Byrne, for defendants, appellants.
    I. The mortgage debt not being due, the defendants had a right then to seize, sell and deliver the property, to satisfy the judgment, and no action lies. (Hull v. Carnley, 11 N. Y. R., 501; 17 Id., 202; Goulet v. Asseler, 22 Id., 226; Manning v. Monaghan, 23 Id., 544, 548.)
    II. The mere sale and delivery to different purchasers, is a nominal damage at most, and particularly where the auctioneer is known, and the names of the purchasers were given at the sale, and the plaintiff, his counsel, and mortgagor were present, and required no information as to the purchasers, and where the plaintiff, since his mortgage became due, made no efforts to find or to account for the situation of the property.
    III. To infer that because articles are sold to different purchasers, they are incapable of reach by, and lost to the mortgagee, is absurd.
    IV. The defendant Cavanagh, being Receiver, became possessed of all the rights and property of Mr. Schenck, (Rules of Court, Ho. 92,) and if plaintiff desired to prevent the sale and protect his interests, he could have invoked the aid of the Court. The Receiver was a legal trustee, an officer of the Court, and represented all creditors having a lien on the property; the goods were then in the custody of the law without a levy; (Story’s Equity, §§ 826 to 831; Willard’s Equity, 332, &c.; 19 E". Y. R., 370 9 Id., 142; 8 Paige, 388;) but the sale was by plaintiff’ consent; he was present also, and did not object, he is, therefore, estopped to deny the validity of the sale; besides, he demanded the proceeds of the sale, and therefore affirmed it. A demand was made of the property when the defendants had not possession. (Hill v. Covell, 1 Comst., 522; 1 Cow. & Hill, 454-461.)
    Y. The policy of the law is to sell distributively, for this is for the best interests of debtor and creditor.
    VI. The mortgage not being refiled, ceased “to be valid ” against creditors at the expiration of one year from the date of filing. (2 R. S., 4th ed., 318, § 11; Farmers’ Loan and Trust Co. v. Hendrickson, 25 Barb., 484; Nitchie v. Townsend, 2 Sandf., 299.) The act must be strictly complied with. (Ely v. Carnley, 19 N. Y. R., 496.)
    YII. A sale of the goods would have been inevitable, as the mortgagor was insolvent. An auction sale is the true evidence of the market value.
    YIII. No proof was given of any actual pecuniary injury, or that the goods were sold at an unreasonable time, or that they would have sold for more.
    IX. The goods were not shown to have perished or depreciated by the act of the defendants. The presumption is, that they exist; if so, the plaintiff (had he refiled his mortgage) could have maintained an action against the purchasers, but not having done so, they acquired the rights of the creditors.
    X. The action against Mr. Gosling was abandoned; he bought goods proved to be of the value of $410.75; or, as the plaintiff alleged, $380.
    XI. The Justice should have dismissed the complaint on the grounds moved for, and have charged and modified his charge as requested; and the various exceptions to the rulings were well taken.

      Edwards Pierrepont, for plaintiff, respondent.
    I. It is settled by the Court of Appeals, as well as by this Court, in this case, that an action of this nature lies. (1 Bosw., 459 ; 23 N. Y. R., 539.)
    II. The exceptions are untenable. Some of them have been decided against the appellants on the former trial by the General Term of this Court, and by the Court of Appeals. Others are plainly frivolous. The assertions contained in the eighth, ninth, and eleventh motions to dismiss the complaint are not true.
   By the Court—Robertson, J.

The first objection in this case is that the mortgage was not refiled in one year from its original filing. But the property which forms the subject of this action , was sold by the defendants' directions, nearly six months before the end of that year. If they were wrongdoers at the time of the sale, they cannot shelter themselves under the character of creditors, at this time, to defeat the plaintiff’s claim; his right to such redress became perfect at the time of the sale. The plaintiff cannot lose his right of action, by failing to perform the useless ceremony of refiling the mortgage, after the defendants have rendered it worthless as a security.

The next objection to the plaintiff’s right to recover is that the plaintiff was present at the sale, and did not forbid it. The defendants knew his claim at the time of such sale, and cannot avoid liability when they did everything to defeat it. The plaintiff was not bound to give such notice; the defendants, who were putting the property out of his reach, if. any are, were bound to give it, if they wished to save his rights in enforcing their own. If they sold only the judgment debtor’s right, title and interest, there might have been no necessity for mentioning the mortgage, but selling the articles themselves, after notice of the plaintiff’s lien, in a manner to defeat that lien, was. a wrong for which they are responsible. The plaintiff undoubtedly might have given notice of his mortgage to every purchaser, and sued him for the article bought, in case he refused to deliver, it up, when the mortgage should become due, but he was not bound to do so.

The fact that one of the purchasers (Gosling) was originally sued in this action and afterward omitted as a party, cannot alter the plaintiff’s right or his amdtint of damages against the present defendants. If the former was bound to proceed against the purchasers, the latter were exempt, but if the latter were liable, he was not bound to sue the former.

The sole ground of complaint is, that the defendants, with knowledge of the plaintiff’s lien, dispersed the goods, so as to render it impossible for him to enforce it. A purchaser of them from the original mortgagor, would have been equally liable for doing the same thing, with the same knowledge. A mortgagee is entitled, until his mortgage is due, to have the mortgaged property so kept together or placed as to be within his reach when his mortgage becomes due. The mortgagor, and all who acquire title under him, to the equity of redemption, with knowledge of the mortgage, become, substantially, bailees for the mortgagee, and are bound to preserve the property for him when his mortgage becomes due. It is immaterial, therefore, how carefully the sale was conducted and what efforts were made to have the property bring the highest price.

There appears to have been twenty-two lots of articles sold, of which the former defendant, Gosling, bought eleven. Several other persons bought the rest, which were sold separately. There were a great many other articles sold at the same time not belonging to the plaintiff or the mortgagor. Although the testimony is not very definite as to the number of purchasers, the separation of the articles in the sale and the fact that there were several purchasers, is sufficient to sustain the verdict of the Jury. The only instruction given to them in regard to the mode of sale, was that the taking, followed up by the selling in the manner the property was sold, was in violation of the plaintiff’s rights; and an exception was taken to a refusal to correct the previous part of the charge as to the liability of the defendants for taking in any other particular. Where the evidence made out a prima facie case, however vaguely, of numerous purchasers and a scattering of the goods, we have a right to infer, in the absence of evidence to the contrary, that the jury adopted the proper rule of law, and found the facts to conform to it. There was no request to the Court -on either side, to render the charge more, explicit as to the mode of selling intended; both parties were willing to presume that the Jury understood it in the sense they desired, and that is sufficient. It was in the power of the defendants to have shown1 distinctly, that the purchasers were few and easily accessible; the sale was undoubtedly, therefore, made.in ,such a way as to debar the plaintiff from being redressed for the loss of his pledge, except by multiplied litigation and considerable research, if successful at all. And the case comes within the rule laid down in it when it was before the Court of Appeals. (23 N. Y. R., 539.)

The first motion to. dismiss the complaint was' properly refused upon either ground upon which it was asked ; it was proved that the defendants took the property, and it was immaterial who had it when the mortgage became due.

Of the grounds upon which the second motion to dismiss the complaint was made, seven of them, consisting of the first and last four except the fourteenth, are directly contrary to the former decision of this case both in this Court and the Court of Appeals. (See 1 Bosw., 459; 23 N. Y. R., 539.) The sixth is but a corollary from the preceding five. The fifth and eleventh, which required the plaintiff to do that, by creating necessity for doing which, the liability of the defendants arose, to wit, to find the goods and purchasers, are-of course untenable. The seventh, in regard to the necessity of proceeding against a purchaser, and the fourteenth in regard to the actual suit against a purchaser, have already been disposed of. The tenth in regard to the attendance of the plaintiff at the sale,.has also been disposed of. The eighth and ninth, founded on a, supposed ratification of the sale, and an election to make one of the purchasers liable, are equally without support in the testimony, or in any-rule of law.

In regard to the requests on behalf of the defendants to charge the- jury, the first related to the necessity of the plaintiff’s exerting himself to get the goods from the purchasers; the second to the limiting of his recovery to the expenses he should be put to in a successful search, or their value after an unsuccessful search for them; the third related to making one of the purchasers liable instead of the defendants, and the fourth to the necessity of the defendants having the property within possession at the time of the mortgage becoming due; and these questions have already been disposed of. The request to correct the charge by considering the presence and silence of the plaintiff at the sale as an assent, was properly refused. The leading opinion in the Court of Appeals in this case seems to sanction the doctrine that by the parties in this case omitting to notify the purchasers of the mortgage, the plaintiff’s remedy against the defendants was forthwith perfect, but his right against the purchasers was only complete on the exhaustion of such remedy against the defendants.

There being no errors of law in the case, the judgment and order denying a new trial should be affirmed with costs on each, the latter to be fixed at ten dollars.


author: By the Court—Bosworth, Ch. J;

text:
    Merrick Price, Plaintiff, v. William S. Murray, Defendant.
    In an action for damages for converting plaintiff’s personal property and ejecting him from his store, it appeared that the plaintiff made a general assignment for the benefit of his creditors to the defendant, who was his landlord, and that some time after the assignment, the plaintiff having meanwhile continued in possession, the defendant excluded him from the premises and took possession of all the goods there, claiming that they all passed under the assignment. The plaintiff testified that a part of the goods so withheld from him, he had acquired subsequent to the assignment, and that at the time of the eviction he was doing a profitable business.

      Held, upon the evidence in this case:
    1st That it was error to nonsuit the plaintiff as to his claim for conversion of the property which he alleged that he had acquired subsequent to the assignment.
    2d. That the eviction was not a case for vindictive damages, the defendant appearing to have acted in good faith.
    3d. That the plaintiff was entitled to recover his actual damage for the breaking up of his business, and that a verdict for nominal damages should be set aside.
    (Before Bosworth, Ch. J., and Moncrief and Robertson, J. J.)
    Heard, February 6, 1863;
    decided, February 28, 1863.
    The exceptions taken on the trial of this cause were directed to be heard, in the first instance, at the General Term, the judgment to be in the meanwhile suspended.
    The complaint, in this action, stated two causes of action: first, for the wrongful conversion, by the defendant, on the 20th of May, 1861, of certain personal property ; and, second, for evicting the plaintiff, on that day, from premises which he had leased from the defendant, being a part of the store Ho. 22 John street, in the City of Hew York, and, by such eviction, breaking up the plaintiff’s business. The answer denied the allegations of the complaint, and, further, alleged that the plaintiff, on the 14th of February, 1861, had made a general assignment of his property (including the property converted) to the defendant, for the benefit of his creditors.
    The action was tried on the first day of December, 1862, before Mr. Justice Moptell, and a Jury.
    The plaintiff proved, by his own testimony, and that of witnesses, Stevens and Eobbins, that, in May, 1861, he was engaged, at Ho. 22 John street, in the business of applying independent seconds to ordinary watches, and also in the sale of hardware, guns, etc., on commission; and that he occupied, for that business, a portion of the store; that he rented the same of the defendant, at $300 a year; that he had in the store a large number of articles, of the total value of $2,161; that the defendant, between the 20th and 29th of May, 1861, by force, evicted and entirely dispossessed him of the premises; took possession of all the property there, and broke up his business. The plaintiff was thus thrown out of employment, and was out of employment for six months. He testified that his receipts, in the business, had been about $120 a week and his expenses about $24, and that he had more business than he could do.

      The plaintiff testified that a portion of the property in the store he had acquired after the assignment. Of this the total value was $359, $75 thereof being the absolute property of the plaintiff, and the residue he held as consignee. The Justice dismissed the complaint, so far as it related to the cause of action for conversion of property, and the plaintiff excepted.
    The defendant was then sworn as a witness, on his own behalf, and testified that he excluded the plaintiff from his store because he was annoyed by him there after the assignment, and that plaintiff went for a policeman. “I stated to the policeman that he did not belong there; that I was assignee, and held the property, whatever there was, and I then and there stated he could not come in; neither could the officer.”
    Q. You never knew that Mr. Price purchased any property after the assignment there?
    A. Never, so far as I know. All his story about having other property is entirely untrue; it is entirely new to me.
    The Justice then charged the Jury that they could not give the plaintiff vindictive damages for the trespass and eviction complained of, and that the plaintiff had not shown any actual damages, and to this the plaintiff excepted.
    The Jury rendered a verdict for the plaintiff for six cents.

      Thomas Stevenson, for plaintiff, appellant.
    I. Plaintiff had such an interest in the property consigned to him, subsequent to the assignment, as to enable him to sue. for the conversion. (Smith v. James, 7 Cow. 328.)
    II. Plaintiff was entitled to recover for the conversion of the $75 worth of property of his own, acquired by him subsequent to the assignment.
    III. No demand was necessary of either the assigned property or the property subsequently acquired, because defendant- did not come lawfully into possession. A conversion of those articles was established. (See Anderson v. Nicholas, 5 Bosw., p. 121, and cases there referred to in first point of Mr. Prentiss; Connah v. Hale, 23 Wend., 462; Phillips v. Hall, 8 Wend., 610, and cases there cited.)
    IV. The Justice erred in charging that the Jury could not give vindictive damages.
    In actions of trespass plaintiff may recover vindictive damages, and the Jury are not limited to the actual loss or pecuniary damage. (See Grah. & W. on New Trials, 434 to 439, and cases there cited; also Sedgw. on the Meas. of Dam., 39-42, 88.)
    Y. Plaintiff was entitled to recover for loss of custom or business. (Sedgw. on Dam., 65.)

      Cyrus Lawton, for defendant, respondent.
    I. The Justice was correct in excluding evidence to show a conversion of property which came into possession of plaintiff after the assignment, because no demand was averred or proved.
    II. Defendant did not take and carry away the property wrongfully, or take forcible possession of the same; but it all came to him by virtue of the assignment, and he was in lawful possession thereof as assignee.
    III. If there was any property other than that assigned, a demand was necessary, to maintain this action.
    IY. Where a person is in peaceable and lawful possession, a demand is necessary before suit. (Howell v. Kroose, 2 Abbotts’ Pr., 167.)
    Y. There can be no doubt but what the plaintiff’s interest in the lease ceased with the assignment, for thereby he assigned and transferred all his lands, and all goods and chattels, documents and vouchers belonging to his dealings or property, and, as a matter of law, the lease passed under the assignment.
    YI. The Judge’s charge was correct.
   By the Court—Bosworth, Ch. J;

This action is brought to recover damages, for forcibly and unlawfully evicting the plaintiff from 22 John street, and for taking plaintiff’s personal property, which was therein,'and converting it to the defendant’s use. The answer, first, denies all the allegations of the complaint, and, second, avers that, on the 14th of February, 1861, the plaintiff assigned to the defendant “ all his said plaintiff’s property mentioned in said complaint or otherwise.”

The Jury have found that the defendant rented the premises in question to the plaintiff, for one year, from May 1, 1861, and subsequently dispossessed him unlawfully.

The plaintiff testified on the trial, that, between the 20th and 26th of May, 1861, the defendant excluded him from the premises.

“ The defendant, in dispossessing me, had all my tools, my patent papers and my drafts for applying these independent seconds, and I could not go on afterward; I had nothing to refer to.”

He testified that he assigned, on the 15th of February,. 1861, his property*to the defendant, and delivered to him the property specified in the assignment. That, subse- . quent to that, and before the eviction, he received other property, on consignment, for sale, which he specified. He says: “I delivered him (the defendant) possession of such property as was in the schedule of the assignment. The other property he tools possession of was after he ejected me.”

“ This lot of guns the defendant seized, I had sold to a house on Broadway; these are the guns I bought of Mr. Bobbins, and paid cash for; they were sold but not delivered; they were to be delivered in about three days after he ejected me; these guns were in the store when I was ejected; I think they were there about a week previous.”

This evidence, uucontradicted or unexplained; would justify a verdict that the defendant wrongfully took into his possession the property which the plaintiff specified, and which he swore he procured after the assignment was made. Any one reading it, would naturally understand the plaintiff as testifying and intending to be understood as testifying that the defendant took actual possession and control of this personal property, claiming the right to control it.

It is evident that the defendant’s counsel so understood it. Eor, subsequently, (and after the complaint was dismissed as to this cause of action,) and in giving his version' of what occurred, when the policeman came there about an hour after the dispossessing, he says : “ I stated to the policeman that he (the plaintiff) did not belong there; that I was assignee and held the property, whatever there was, and I then and there stated he could not come in ; neither could the officer.”

This makes it very clear, that the defendant excluded and intended to exclude the plaintiff from the possession of every item of personal property, and that he took actual possession, under a claim of right, of every article of it.

I think it was error to nonsuit the plaintiff. Whether the Jury would have found that the plaintiff had bought property after the assignment, which the defendant took when he ejected the plaintiff—is another question. If they, had, their verdict would not be against evidence. The Jury believed him, in respect to the fact of his having hired a part of the store from the defendant.

It was not a case for vindictive damages, and the defendant in fact, and in good faith, believed that there was no property there, except the assigned premises. But if entitled to recover anything, the plaintiff was entitled to his actual damages. If his testimony was credited, they amounted to more than six cents. If he was at the time receiving $120 per week, and paying workmen only $24, and this business was entirely broken up, the damages were more than six cents.

The uncertainty how long he would earn profits, may be a good reason for not allowing, for a loss of profits beyond the time the evidence showed they would be earned. But, it cannot be possible, that a man in actual business, shown to be at the time actually profitable, is restricted to six cents damages, for the entire and sudden destruction of the business. (St. John v. The Mayor, &c., 6 Duer, 315; 3 Bosw., 483.)

The verdict should be set aside, and a new trial granted, with costs to abide the event.


author: By the Court—Bosworth, Ch. J.

text:
    Hugh McFarlane, Jr., Plaintiff and Appellant, v. John Kerr, Defendant and Respondent.
    1. When the owner of land in the City of New York, bounded on one side by high water mark, continues the fences, on his lines running to the water, down to low water mark, to prevent cattle passing around them; this is not such an occupancy or inclosure of .the land between high water mark and low water mark, as will constitute an adverse possession, against the city in whom the title thereto is vested by charter.
    2. Nor is the building of a bulkhead, or the filling in with earth, of a limited portion of the land between high and low water.mark, an improvement of it; nor is the cutting of sedge thereon, under a claim of a custom of the owners of the upland to cut sedge below high water mark, an occupation thereof, such as is necessary to amount to an adverse possession.

      4. The corporation of the city'are not estopped from claiming title to land between high and low water mark, by their having designated it for years upon their maps as the property of an individual, and having assessed taxes and the expenses of improvements thereofi as his property, and collected the same from him.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 10, 1862;
    decided, February 21, 1863.
    Appeal from a judgment in favor of the defendant, recovered by the plaintiff upon a trial before Mr. justice Moncrief, without a Jury, in ¡November, 1861.
    The plaintiff sued to compel the specific performance of a contract by the defendant to purchase twelve lots of land on Fourth avenue, between 133d and 134th streets, in the Oity of ¡New York.
    The defendant alleged that the plaintiff’s title was defective, and he therefore refused to complete the purchase.
    A portion of the premises lay below the line of original high water mark, and between high and low water mark of Harlem river, and the question in the case was, whether the plaintiff had title to that portion. To the other part of the land his title was not questioned.
    The premises in question were in the water front of tracts of land which were occupied as farms down to about the year 1838, when they were laid out in lots upon a map conforming to the proposed streets and avenues of the city. A portion of the lots in question were between the line of high and low water mark, which area, by the charters of the Oity of Hew York, belonged to the city corporation and their grantees. The plaintiff claimed by various mesne conveyances and foreclosures, under a deed or mortgage executed in 1838, by Charles Henry Hall, who was the owner of the upland, which deed and all the subsequent conveyances, assumed to convey the lots in question, designating them1 as such. The previous conveyances, under which Hall claimed, described the lands as bounded in this direction by the river.
    It appeared that for many years, the plaintiff and those under whom he claimed, had been designated as the owners of these lots, upon the maps of the city corporation, and had been assessed by the corporation with taxes and with the expenses of improvements, and had paid the same, and the plaintiff claimed that the occupancy of the premises and the payment of taxes and assessments gave him good title, and precluded the city from any claim to the premises.
    The Justice, before whom the cause was tried, found that the plaintiff had not title; and that the defendant was entitled to judgment for the amount which he had advanced upon the contract, with interest, and his expenses in investigating the title.
    The plaintiff took exceptions to these findings, and appealed from the judgment.

      Benjamin W. Bonney, for plaintiff, appellant.
    I. The patents by the Royal Governors under the crown of Great Britain, to the freeholders and inhabitants of Harlem in 1666 and 1686, granted to and vested in them title in fee to the lands between high and low water mark of Harlem river, and such freeholders and inhabitants owners of the adjoining upland, have always claimed and exercised rights of ownership in and over said land, between high and low water mark, undisturbed and unquestioned by any person. (See North Hempstead v. Hempstead, 2 Wend., 109.)
    The Sovereign is presumptively owner of the shore of the sea, and of the bed and shore of all navigable streams, where the tide flows and ebbs; but the Sovereign may grant the same, and an individual proprietor may prove title in himself thereto by express grant, or by usage or prescription. (Hale De Jure Maris, chs. 5 and 6; Blundell v. Catterall, 5 Barn. & Ad., 268; Commissioners of Canal Fund v. Kempshall, 26 Wend., 404, 413; Child v. Starr, 4 Hill, 369; 3 Kent’s Com., 427, &c.)
    An individual proprietor under such title, owns and may improve and use the shore, by building or otherwise, for any purpose which does not so affect the channel and navigation of the stream, as to be a purpresture or nuisance, and no structure upon or use of land between high and low water mark on Harlem river can be a nuisance, since the act of April 14th, 1852, and the acts in relation to the harbor commissioners and the proceedings under the same. (Laws of 1852, p. 420, ch. 285; Harbor Commissioners’ Acts and Maps.)
    II. The Dongan and Montgomerie charters gave all these lands between high and low water mark, to the city of Hew York; and “The State of Hew York” has never owned, or claimed to own such lands between high and low water mark, or any part thereof. (Charters of New York; Acts of Colonial Legislature, Davies City Laws, p. 198; and 8 Barb., 291, 292.)
    III. When an adjoining riparian proprietor, or any other person, has, in- any way, by grant or by prescription, acquired title as against the Sovereign to the shore or to the bed of a navigable stream, the same rules of law in relation to the conveyance, possession, and use of such shore or bed, apply to and govern the same, as to any other land or real estate.
    IV. The deed by Myer, executor, to Adriance, dated 10th May, 1787, and that by Lawrence to Furman, dated 26th July, 1804, in legal intendment, include and convey the shore of Harlem river between high and low water mark in front of the parcels of upland in such deeds respectively, described; and, under such conveyances, the grantees claimed, possessed, and used such shore, as their private property. (Child v. Starr, 4 Hill, 369, and opinions and cases cited.)
    V. So also of the deed by Adriance to Hall, dated 27th June, 1825, and that by Furman to Hall, dated 5th July, 1825. (Authorities above cited.)
    VI. The case shows no ground for claim or pretense of title to the premises in question, adverse to the plaintiff, in any other person than “ The City of Hew Yorkand as against the city, and all other persons, the plaintiff has proved perfect title in himself through conveyances in writing, and by adverse possession founded thereon.
    The possession by plaintiff and his grantees, if it were not founded on written instruments, has been sufficien t to bar any claim of title by the city. (2 R. S., 294, §§ 9-12 ; Code of Pro., §§ 82-85; Jackson v. Vermilyea, 6 Cow., 678; Poor v. Horton, 15 Barb., 485; People v. Van Rensselaer, 5 Seld., 291.)
    VII. The title of plaintiff and his grantors has been, for more than twenty years, acknowledged by the City of Hew York, by maps, assessing taxes, and the. award for benefit and damage on the opening of Fourth avenue.
    VIII. There is no allegation or pretense that the City of Hew York or any other person, has ever claimed any title or interest.
    IX. Plaintiff has .shown a good, merchantable title in himself to the whole premises contracted to be conveyed; and the defendant has proved nothing to impeach that title; not even a pretense' of claim by any other person thereto ; the judgment of the Special Term was therefore erroneous and should be reversed; and judgment rendered for specific performance by defendant of the contract in question; with costs to plaintiff. (Story’s Eq. Jur., § 749; Pyrke v. Waddington, 17 Eng. L. & E. R., 534.)
    H. W. Robinson, for defendant, respondent.
    I. The plaintiff was bound to show such marketable title as was free from doubt, and which would secure to the purchaser full and unembarrassed enjoyment of the property. (1 Hilliard on Vendors, 209, 211, 443 ; 2 Id., 15; Adams’ Eq., 258.)
    It is not sufficient that the title be such as would prevail in an action to try the right to the property. (Story Eq. Jur., § 749; Jervoise v. Duke of Somerset, 1 Jac. & Walk., 549; Cooper v. Denne, 1 Ves. Jr., 567; Fry on Specific Per. (84 Law Lib. N. S.), 256 ; Pyrke v. Waddingham, 17 Eng. C. L. and Eq., 539; S. C., 10 Hare., 1.)
    IT. The plaintiff had no title by deed or judgment which assumed to convey the premises to Hall, under whom he claimed. (3 Kent’s Com., 427-432; Halsey v. McCormick, 3 Kern., 297; Lansing v. Smith, 4 Wend., 20; Lowndes v. Dickerson, 34 Barb., 586; Gould v. The Hudson River R. R. Co., 2 Seld., 522; Canal Commissioners v The People, 5 Wend., 448 ; Furman v. Mayor, &c., of N. Y., 6 Seld., 567; Jackson v. Hathaway, 15 Johns., 454; Lawrence v. Delano, 3 Sandf. S. C., 340.)
    III. The facts proved do not show any adverse possession by Hall, or any person holding under Mm. (Emans v Turnbull, 2 Johns., 322; Smith v. Levinus, 4 Seld., 472; Hammond v. Inloes, 4 Maryland, 138; 2 R. S., 294, §§ 11, 12; Corning v. Troy Iron & Nail Factory, 34 Barb., 529; S. C., 22 How. Pr., 212; Revisers’ note, 3 R. S., (2 ed.), 700; Lane v. Gould, 10 Barb., 254; Humbert v. Trinity Church, 24 Wend., 587; Bowie v. Brake, 3 Duer, 35; Jackson v. Frost, 5 Cow., 346; Simpson v. Downing, 23 Wend., 316; Bullen v. Arnold, 31 Maine, 583; Davies’ Laws City N. Y., 539; See Street Opening Act of 1813; 2 R. L. of 1813, 418, § 184.)

      IV. The facts proved with a view to establish an adverse possession are insufficient to sustain a title, as between opposing claimants; far less do they show such a clear undoubted, and exclusive possession continuously, for the time necessary to constitute an absolute estate in fee simple, by adverse possession such as would warrant a judgment for a specific performance. (Smith v. Death, 5 Mad., 371; Cotterel v. Watkins, 1 Beav., 361; Pyrke v. Waddington, 17 Eng. C. L. and Eq., 539.)
    V. The judgment in favor of defendant, awarding a return of the money he had advanced upon the contract, with interest, and his expenses of examining the title was correct, and ought to be affirmed. (2 Hilliard on Yend., 15.)
   By the Court—Bosworth, Ch. J.

The plaintiff claims title under Charles Henry Hall, to the premises in question. These premises are on the westerly side of Harlem river, between high and low water mark, or wholly easterly of low water mark.

Charles Henry Hall’s paper title to a part of the premises, (if any he had,) is under a deed from John Adriance, dated June 27, 1825. This deed bounds the premises .which it professes, to convey, “ easterly on the Harlem river.”

The deed under which said Hall obtained whatever of documentary title he has to the residue of the premises, is from Gabriel Furman, is dated June 25,1825, and describes the premises conveyed by it “ as bounded easterly by the Harlem river " and as “including the purchases heretofore made by Gabriel Furman, of William Daivrence, Gabriel Ludlow, Master in Chancery, Peter Meyer and others, and Peter Meyer, containing 40 acres more or less.” The deed from William Lawrence to Gabriel Furman, is dated July 26, 1804, and describes the land which it conveys, as running “ along land of John Adriance, north 88° 10' east, 13 chains and 50 links, to high water mark on the Harlem river; thence along high water marie in Harlem river, north 3° 11' west 3 chains 6 links; thence along the same north 28° 30' west 4 chains and 11 links, to lands of John Meyers,” &c.

These are the only conveyances to Charles Henry Hall, which pretend to vest in him any title to the premises in question. .

The Harlem river, opposite these premises, and for some distance above and below them, is a navigable stream, where the tide ebbs and flows.

These deeds do not convey any title to the premises in question, to Charles Henry Hall. (Gould v. The Hudson R. R. Co., 2 Seld., 522; Furman v. The Mayor, &c., of New York, 5 Sandf., 16; 6 Seld., 567; Halsey v. McCormick, 3 Kern., 297.)

Ho such occupancy by Charles Henry Hall and those claiming under him, is shown, as is requisite to constitute a title by adverse possession.

To constitute an adverse possession, where the claim of title is not founded upon some written instrument or some judgment or decree, apparently transferring a claim of right, there must have been “ an actual continued occupation,” under claim of title, and in such cases only “ the . premises so actually occupied, and no other, shall be deemed to be held adversely.” (2 R. S., 294, § 11; Code, § 84.) In such a case there cannot be said to have been an occupation, unless the land claimed to have been possessed, “ has been protected by a substantial inclosure,” or “ has been usually cultivated or improved. (2 R. S., 294, § 12; Code, § 85.)

Large portions of the premises in question have never been protected by a substantial, or any other inclosure. Hor have they been cultivated; nor has any part of them been improved, unless the parts on which bulkheads have been erected, or those parts which have been filled in with earth, may be said to have been thereby improved.

The fact that on the lines of the land running easterly to the river, fences were continued down below high water mark, (or even below low water mark, if that was in truth done,) for the purpose of preventing the passage of cattle upon the upland, is not of itself such occupancy as the statute declares to be indispensable, nor does it amount to an inclosure of the premises. On the easterly side, (the Haflem river,) there was no fence or erection, either on the line or within the waters of the Harlem river. There was, therefore, not only the absence of any substantial inclosure of the whole premises, but there was not in fact an in closure of any kind.

There was no occupation, except of the limited portions covered by bulkheads, filled in with earth, unless the cutting of the sea weed amounts to an, occupation.

One witness (Peter Randel) says that “ we fished on the Adriance property, three or four different seines; the fishermen came up on the upland, and had their fishing houses on the upland; they quit fishing about the time Mr. Hall bought; they had done this as long as I can remember, from the time I was a boy.” He had lived on the Adriance property from 1814 to 1825. He says “I used to cut sedge that grew on land between high and low water mark, to make manure.”

He says “ the custom has been for the person owning the upland, to cut the sedge growing in front of his premises.”

The testimony of the other witnesses in respect to cutting sedge is substantially the same. This shows that they claimed the right to cut the sedge as owners of the upland, and not as owners of the land on which the sedge grew. (See Emans v. Turnbull, 2 Johns., 313; and Smith v. Levinus, 4 Seld., 472.)

There is, therefore, no just ground for the claim that the plaintiff .has shown himself capable of conveying to the defendant, an unincumbered title in fee simple to the premises, unless he has shown that the title was in the Mayor, Aldermen and Commonalty of the City of Hew York, at the time of the aforesaid conveyances to Charles Henry Hall, and that the latter is now estopped, by facts proved, from denying the plaintiff’s title.

The Dongan charter, dated April 27,1686, conveys to the Mayor, &c., “ all the waste, vacant, unpatented, and unappropriated lands lying and being within the said City of New York, and on Manhattan’s Island aforesaid, extending and reaching to the low water mark,” &c.

The Montgomerie Charter, dated June 15th, 1730, recites and confirms the former patent.

In 1838, the premises in question were assessed for taxes to Charles Henry Hall, for the taxes of that year, and he paid them.

In 1849, and since, they have been assessed for taxes, and the taxes have been paid by Mr. Hall, or those claiming under him, and during this period they were assessed as the property of the person, claiming title at the time of such assessment.

No law has been cited which declares that assessing lands for taxes, as being the property of a particular person, and the payment by such person of the taxes so assessed, for the period during which that was proved to have been done in respect to the premises in question, or for any period of time, shall divest the true owner of his title, and vest it in the person paying the taxes thus assessed.

It is not one of the modes specified in the statute, by which one having no title, can acquire a good title. In Rose v. Klinger, (8 Watts & Serg., 178, 180,) it is said that the payment of taxes for several years by one claiming title, is not evidence of title, though it may be some evidence of the extent of his claim.

We think that the exceptions taken to the decisions of the Court at Special Term, are untenable, and that the judgment should be affirmed, with costs.


author: By the Court—Barbour, J.

text:
    Samuel B. Deming, Plaintiff and Respondent, v. Benjamin Bailey, Defendant and Appellant.
    1. In an action to recover the price of stocks sold to the defendant by a third person, who, it was alleged, had assigned the cause of action therefor to the plaintiff, it appeared that the stocks had belonged to the wife of such third person, and that he had sold them for her benefit; but there was no proof that she had ratified the sale, or that she had assigned the cause of action. Held, that a verdict for the plaintiff must be set aside.
    2. Testimony that she had “ assigned her interest in the stock to the plaintiff,” does not tend to prove an assignment of the cause of action for the price, but rather tends to show that she had repudiated the sale.
    (Before Robertson, White and Barbour, J. J.)
    Heard, June 10, 1862;
    decided, February 28, 1863.
    Appeal from a judgment in favor of the plaintiffs, entered, on a verdict, and from an order denying a motion for a new trial.
    The cause was tried before Hr. Justice Honcbief and a Jury, on the 21st January, 1862, and resulted in a verdict for the plaintiff for $336.70.
    The pleadings and evidence sufficiently appear in the opinion of the Court.

      E. J. Pattison, for defendant, appellant; —
    Argued that the verdict was against the weight of evidence; and that the action was not prosecuted in the name of the real party in interest.

      J. Wilson Green, for plaintiff, respondent;—
    Insisted, that in the conflict of evidence, the verdict ought not to be disturbed. And that, as the stock was originally held by Egbert Deming, in his own name, whether it belonged to himself or his wife, was a matter which concerned only themselves, as the defendant dealt with Egbert Deming as the principal, and had no notice to the contrary. And, moreover, the wife, before the commencement of this action, assigned her interest to the plaintiff.
   By the Court—Barbour, J.

This is an appeal by the defendant from an order of the Special Term denying «his motion for a new trial, and from the judgment.

The complaint averred that Egbert Deming sold to the defendant twenty shares of stock, at twenty dollars per share, upon which the defendant had paid $102, leaving due to Egbert Deming $298, on account of the purchase; and that, afterward, Egbert Deming sold and assigned his claim against the defendant for such balance of purchase-money, to the plaintiff, Samuel B. Deming. All this was controverted by the answer.

Upon the trial, the plaintiff proved, by Egbert Deming himself, that the latter sold the stock to the defendant, and subsequently assigned his claim against the defendant to the plaintiff; and that, when such assignment was made, $298 of the purchase-money remained unpaid. On his cross-examination, however, the same witness stated that the stock belonged to his wife, she having purchased it from a Mr. Howell; that he (the witness) never owned it, and that he sold it for the benefit of his wife.

Ho evidence was given tending to contradict the fact that Egbert Deming’s wife was the real owner of the stock; nor was there any proof that she ever authorized or ratified the alleged sale to the defendant. Hor did the plaintiff prove any sale or assignment by Egbert’s wife to the plaintiff, of the money alleged in the complaint to be due from the defendant on account of the purchase. It is true that Egbert Deming stated that his wife had assigned her interest in the stock to the plaintiff, although, he adds, “her name is not to the assignment.” But this, if it proves anything, shows that the wife, by assigning, not the money due upon the alleged sale, but the stock itself, had repudiated the sale made by her husband, by assuming the ownership of the stock, and conveying it to the plaintiff; who thus, it may be added, became advised of and assented to her claim as such owner.

To sustain his complaint and entitle him to recover in this action, the plaintiff was bound to prove that a portion of the purchase-money of the alleged sale was due from the defendant to Egbert Deming; for his claim to recover in this action is based solely upon Egbert Deming’s assignment of such purchase-moneys to him. This he wholly* failed to do. As the stocks were owned by Mrs. Deming, and were sold by her husband for her benefit, their proceeds belong to her, if she authorized or assented to the sale; and, if not, nothing passed to the defendant by the alleged sale, and the stocks are now the property of Mrs. Deming, unless the defendant became then owner by assignment from her.

The verdict is, therefore, wholly unsustained by the evidence; and the judgment and orders appealed from should be reversed, and a new trial granted, with costs to abide the event.


text:
    David O. Nichols, (by his Guardian, &c.,) Plaintiff and Respondent, v. The Sixth Avenue Railroad Company, Defendants and Appellants.
    When a suit has been regularly prosecuted to judgment, and substantial justice has been done, the parties are not entitled to invoke the interposition of the Court, for the purpose of having the cause retried and again determined, at the expense of the public, and to the delay of other suitors, although both of the litigants join in the application.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 10, 1862;
    decided, February 28, 1863.
    Appeal by the defendants from a judgment against them entered on a verdict, and from an order denying their application for a new trial.
    This action was brought to recover from the defendants damages for injuries alleged to have been sustained by the plaintiff, David O. Mchols, an infant of the age of fifteen years, through the negligence of the defendants’ servants* while he was a passenger upon one of their cars. The damages were laid at $10,000.
    On the first trial of the cause the plaintiff recovered $7,500 damages; but a new trial was granted on the ground that the verdict was excessive. On the second trial the Jury disagreed.
    The third trial was had before Chief Justice Bosworth and a Jury, on the 6th day of March, 1862, and the plaintiff had a verdict .of $2,500.
    The defendants moved for a new trial, on the ground that, upon the evidence, it appeared that the plaintiff, Mchols, was himself chargeable with negligence, which contributed to the injury. The motion being denied, and judgment having been entered, defendants appealed.

      John Slosson, for defendants, appellants.

      H. A. Cram, for plaintiff, respondent;—
    Suggested that on the last trial, a juror had, from improper motives, compelled the jury to render a verdict smaller than the case demanded, and that it appeared by the evidence to be unjustly small for the injury sustained, and stated that for these reasons, the plaintiff was willing that the judgment should be reversed; and that he prayed that the Court would reverse the judgment, without passing on the questions of law argued by the appellant ; and that such questions the respondent declined to argue, and did not argue, but proposed to argue at some future time, when a verdict proper in amount should have been rendered.
   By the Court—Barbour, J.

The fact that the respondent is dissatisfied with the verdict he has obtained, and, by his counsel, urges the Court, upon the hearing of this appeal, to reverse the judgment, and direct a new trial, in accordance with the prayer of the appellant, is not, of itself, sufficient to warrant such action on the part of the Court. When a suit has regularly and properly been prosecuted and defended to a final judgment, by which substantial justice has been decreed, the parties are not entitled, as of right, and without sufficient reason, to evoke the interposition of the Court for the purpose of having the cause retried, and again determined, at the expense of the public, and to the delay of other creditors, although both of the litigants join in the application.

It is not claimed, in this case, that a new trial will enable either party to present the matter to the Jury in an aspect different, in any respect, from that which it bore at the former trial. Uor can I perceive that any error was committed by the Judge in refusing to charge the Jury in the particular form specifically requested by the defendants’ counsel. The charge, as delivered, covers, substantially, all that was material in those requests; and embodies everything that it was necessary or proper for the Judge to tell the Jury upon that subject. #

I see no reason, therefore, for disturbing the judgment.