text:
    CHARLES PUTZEL, as Receiver, etc., Respondent v. RICHARD L. SCHULHOF, et al., Appellants.

      General assignment, declared fraudulent and void as made with the intent to defraud creditors, etc.

    In this case the court below, at trial term in equity, and the general term on appeal, held that the assignment by Richard L. Schulhof to Loew was made with the intent to hinder, delay and defraud the creditors of said Schulhof, and was fraudulent and void. The court below also found, as conclusions of law, that plaintiff was entitled to a money judgment against all the defen dants for the amount of the judgment recovered by the creditors, at whose suit he was appointed receiver, with costs, and judgment had been rendered against all in accordance with such conclusions. In regard to the defendants Kraus and Clara Schulhof, the court, at general term, held that, upon the facts found, they were not liable to pay to the plaintiff the amount of the judgment recovered by the said creditors, as none of the judgment debtor’s goods ever came into their possession or control, and neither of them received any portion of the judgment debtor’s property or any of the proceeds thereof. The property remained in the hands of the assignor until it was destroyed by fire, and neither of the defendants Kraus or Clara Schulhof have ever received any of the same. The complaint which seeks to set aside as fraudulent a bill of sale of property that had been absolutely destroyed before the commencement of the action, and the setting aside of which could give the creditor no relief nor advantage, states no equitable cause of action. There was no cause of action against defendants Kraus and Clara Schulhof, and the judgment as to them should be reversed and a new trial ordered, with costs to abide the event.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1891.
    Appeal from a judgment entered on the decision of the special term.

      Donohue, Newcombe & Cardozo, attorneys, and Stephen C. Baldwin of counsel, for appellants.

      William King Hall, attorney, and with Albert Bach of counsel, for respondent.
   By the Court.—Ingraham, J.

The action was commenced by the plaintiff as receiver of the property of the defendant Richard L. Schulhof, appointed in supplemental proceedings, against the said defendant to set aside a general assignment for the benefit of creditors made by the said defendant to defendant Loew, and certain transfers of a portion of the assigned property by Loew to the defendant Kraus and by Kraus to defendant Clara Schulhof, as fraudulent.

The relief demanded was that the assignment be declared void; that the defendants be adjudged to account for all the property received by them, and that the plaintiff be authorized to pay out of the proceeds of the property the judgment of the creditors, a.t whose suit he was appointed, and the costs of this action, and to hold the balance subject to the order of the court.

The defendant Loew failed to answer. The other defendants answered denying the fraud.

The court found that the assignment by Richard L. Schulhof to Loew was made with the intent to hinder, delay and defraud the creditors of said Richard Schulhof; that there was no actual change of possession of the property assigned to Loew, except of one sum of $300, and that Richard L. Schulhof remained in possession and had control of the assigned property until the same was destroyed by fire in March, 1887. That there was no consideration for the bill of sale of the property by Loew to Kraus, or for the bill of sale by Kraus to Clara Schulhof. That none of the property pretended to be assigned by the said bills of sale, was ever in the possession or under the control of said Kraus or said Clara Schulhof; that the value of the property that was assigned to Loew and included in the bills of sale amounted to more than sufficient to satisfy the claims of the plaintiff, and, as conclusion of law, that the assignment to Loew was void; that the said bills of sale were fraudulent and void, and that plaintiff is entitled to recover a money judgment against all the defendants for the amount of the judgment recovered by the creditors at whose suit he was appointed, with costs, and judgment in accordance with these conclusions of law was duly entered.

The evidence was sufficient to sustain the finding that the assignment by Schulhof to Loew was fraudulent and void, and so far as the judgment affects Richard L. Schulhof and Loew, the judgment was right, and it should be affirmed with costs.

I do not think, however, that the defendants Kraus and Clara Schulhof are, upon the facts found, liable to pay to the plaintiff the amount. None of the judgment debtor’s goods ever came into their possession or control. Neither of them received any portion of the judgment debtor’s property or its proceeds, but according to- the facts as found by the trial judge, the property remained in the possession of the assignor until it was destroyed by fire. Neither of these defendants, therefore, have received any of the debtor’s property or its proceeds.

The jurisdiction of courts of equity in an action of this character arises from the fact that property of the judgment debtor, or its proceeds, applicable to the payment of his debts, is by reason of some fraudulent devise or transfer placed beyond the reach of an execution to enforce the judgment, or from the nature ■of the property itself the ordinary legal remedies will afford the creditor no relief; but where it appears that at the time of the commencement of the equitable action there is no such property of the judgment debtor, nor the proceeds of any such property in existence, there is nó necessity for the intervention of a court of equity to enforce the creditor’s rights, and the plaintiff has, therefore, no cause of action in equity. The complaint which seeks to set aside, as •fraudulent, a bill of sale of property that had been absolutely destroyed before the commencement of the action, and the setting aside of which could give the creditor no advantage, states no equitable cause of action.

I think, therefore, that on the facts found there was no cause of action against the defendants Kraus and Clara Schulhof, and as to those defendants the judgment should be reversed and a new trial ordered, with costs to the defendants to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    VALENTINE HAMMANN, Appellant v. RICHARD JORDAN, Respondent.

      Party wall, character and requisites, agreement to build, construction oj agreement, etc.

    Parties agreed that plaintiff might build a party wall of twelve inches and locate one half of it on the defendant’s premises “ as a party wall to be continued and used as such," and the defendant agreed that whenever he should desire to use and should use the party wall in the erection of a building on his premises adjoining, that he would pay the plaintiff the sum of $741.16, that being one half of the sum that was to be expended for the erection of the party wall; and the plaintiff afterwards built a wall of twelve inches in thickness, one-half being on each lot, but on the side of the wall towards plaintiff’s house he left spaces in the wall to be used by him as flues. There were twenty-two of these spaces, and their depth was such that they reached over, upon the defendant’s lot, two inches 1 beyond the centre of the wall. The defendant afterwards built on his lot, a house, and did not use the party wall for the beams of his house but built next to it a wall eight inches in thickness upon which he placed the ends of the beams of his house. The only use he made of the party wall was to anchor to it the additional wall he built.
    This action was brought by the plaintiff to recover the sum named in the agreement that was to be paid by the defendant when he used the party wall. There was no proof that defendant, before proceeding to build his house, was aware of the fact that the plaintiff had placed these flues in the wall built by him.

      Held, that in the construction of this agreement, by ordinary rules, a common meaning must be attributed to the phrase “ party wall,” it not appearing that the agreement intended any special, local, or technical meaning. The common idea of a wall is that it is a solid structure, and it is reasonable to hold this in this case when the alternative held would permit the party building it to leave spaces or hollows in the wall to suit his interest and convenience, without consultation with, and the assent of, the other party; and it is impossible to justify the use by the plaintiff of two inches of the defendant’s land in making these flues for ■ plaintiff’s particular use and purposes. The wall built by plaintiff was not a party wall in the full sense and meaning*of that phrase and the agreement, and he is not entitled to recover for the same.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1891.
    Appeal from a judgment entered upon a direction or order of the court at trial term dismissing the complaint.

      Jacob F. Miller, for appellant.

      A. Britton Havens, for respondent.
   Per Curiam.

The plaintiff brought the action upon an agreement made by him and defendant. They were respectively the owners of adjoining lots. The agreement witnessed, that whereas the plaintiff was about to erect a wall to stand equally upon and between the premises, the defendant agreed that the plaintiff might erect upon the defendant’s premises the one-half part of the said wall “ as a party wall, to be continued and used as such.” The defendant agreed that whenever he should desire to use the party wall in the erection of a building on his lot, he would pay to the plaintiff the sum of $741.16, being one-half of the sum to be expended in the erection of the party wall. The plaintiff afterwards built a wall twelve inches thick, one-half of it being on each lot. The defendant afterwards built on his lot, a house. He did not use the so-called party wall for the beams of the house, but next to the party wall built an eight inch Avail in Avhich the ends of the beams were placed. The use he made of the so-called party wall, was to anchor the additional wall to it.

The action is brought to recover the sum named in the agreement to be paid by the defendant, upon his using the party wall.

To maintain his action, it was necessary that the plaintiff should prove that Avhat he built Avas, within the meaning of the agreement, a party wall. In the plaintiff’s case- it appeared that, on the side of the wall toward his house, he left spaces in the wall to be used as flues by him. These were twenty-two in number and each eight inches in Avidth. Their depth was such that they went upon the defendant’s lot tAvo inches beyond the centre of the wall.

On the trial the position upon which the complaint was dismissed was that it affirmatively appeared that the wall, as built by the plaintiff, was not a party wall within the meaning-of the agreement. On substantially a similar case, when the action was before a former general term, 9 N. Y. Supp. 423, the Court held, that the evidence shoAved that the wall was not capable of substantially similar use by each of the adjoining owners. That decision justifies the dismissal of the complaint on the second trial.

The learned counsel for the appellant argued, that there was evidence that Avhile the plaintiff was building, the defendant was present and acquiesced in, or assented to, the mode that was used in the erection of the wall. There Avas no proof, however, that the defendant, before proceeding to build his house, had been aware that the flues were placed in the wall.

Construing the agreement by ordinary rules, a common meaning must be attributed to the phrase “ party wall ” it not appearing that the agreement intended any special, local or technical meaning. The common idea of a wall is that it is a solid structure, and it is reasonable to hold this when the alternative would he to permit the party building to leave spaces or hollows in the wall to suit what may be his present convenience or supposed future convenience without consultation and the assent of the other party. It would be extremely difficult, if not impossible, to show that the legal rights of the other party would be preserved by making the fact that he would not actually be damaged, equivalent to a consent or agreement by him, that the wall should be built as it was in fact built. It would rarely be the fact that a recess in a wall, made without the assent of the other party, would be so absolutely without effect on the convenience of the other party that he would not be entitled to a voice in determining where and of what shape that recess should be. And it would be impossible to justify the use by the plaintiff of two inches of the defendant’s land in making flues for his particular purpose.

Washburn on Easements, 628 (472), states the French law to be, that it prohibits either from making any recess in the wall, and that Pardessus considers this as preventing the construction of a safe, a niche, pipe, or a chimney flue in such a wall. This would seem to regard the nature of the case.

The counsel for appellant supposed that the defect assumed was a matter for compensation to the defendant, on the ground that the condition of the contract had been substantially performed, and that the defect was technical and unimportant. Glaciur v. Black, 50 N. Y. 148; Sinclair v. Talmadge, 35 Barb. 602. The proposition and the cases are not to be applied here, for the building of the flues beyond the centre line was designed, intentional and substantial. Any intentional departure from the contract prevents a recovery, and what the plaintiff did he did with purpose and design, believing, in mistake, that he was acting within the contract. Phillips v. Gallant, 62 N. Y. 264.

In behalf of the plaintiff one of his witnesses, who had been an architect, was asked, “Is it customary to build flues in party walls ? ” On the court’s enquiry as to the purpose of the question, the counsel said that he wanted to show that it was a proper thing to put a flue in a party wall. The question was properly excluded. As it is the general thing, that party walls, as they relate to the realty, are constructed under written agreements, the question in effect asked if such written agreements provided for flues in party walls.

The judgment should be affirmed, with costs.

Ingraham, J. I dissent.


text:
    VALENTINE HAMMANN, Respondent v. RICHARD JORDAN, Appellant.

      Costs, extra allowance of,'cannot be allowed to party unless he recovers in the action.

    In the preceding case the judgment dismissing the complaint of the plaintiff with costs to defendant, further adjudged, “ that the plaintiff, Valentine Hammann, recover of the defendant, Richard Jordan, the sum of $124.01, the amount of extra allowance granted plaintiff by the court on the counter-claim set up in defendant’s answer.” The defendant appealed from so much of the judgment as grants this extra allowance.
    This appeal of defendant was heard at the same general term and argued by same counsel as the appeal of plaintiff. Counsel for defendant, who was the appellant on this part of the judgment, contended that the court erred in awarding an allowance to the plaintiff upon the amount of defendant’s counter-claim after the dismissal of plaintiff’s complaint. Held. that plaintiff was not entitled to the extra allowance.

      Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 13, 1891.
    Appeal by defendant from so much of a judgment dismissing a complaint as grants an additional allowance to the plaintiff computed upon the amount of a counter-claim.

      Havens & Beebe, attorneys, and A. Britton Havens of counsel, for appellant.

      Jacob F. Miller, attorney and of counsel, for respondent.

      Note.—See preceding case.

   Per Curiam.

The plaintiff not having succeeded in the action, which was for a money demand, is not entitled to an additional allowance. Nor was there any judgment in his favor on the counter-claim. §§ 3228, 3234, Code Civil Procedure.

The part of the judgment appealed from by defendant is reversed.


author: By the Court.—Truax, J.

text:
    JAMES RENWICK, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Practice—Oase on appeal, appellants' duty and right of on preparation of, respondent's duty in proposing amendments—Statement that case contains all the evidence as to striking it out.

    It is the duty of an appellant in making up a ease on appeal to insert therein so much of the evidence as he considers material to present the questions involved on the appeal; and if he intends to present for review questions of fact, it is his duty to insert in the case a statement to the effect that the case contains all the evidence taken upon the trial of the action, and he is entitled as of strict right to have such a statement in the case.

      Respondent's remedy, if the case does not fairly represent the testimony, is not to have the statement as to the ease containing all the evidence stricken out, but to propose amendments asking to have inserted in the case the evidence which he deems material and which he claims to have been omitted. If the respondent does not see fit by proposed amendments to call the attention of the trial judge to any material evidence that has been left out, it must be taken for granted that the ease presented by the appellant does contain all the material evidence.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal from an order denying a motion made by the defendants why the case on appeal herein should not be re-settled in certain specified particulars.
    The facts sufficiently appear in the opinion,

      Davies & Rapallo, attorneys, and, Julian T. Davies and Brainard Tolles of counsel, for appellants, cited :
    Code of Civil Procedure, § 1346 ; Stirn v. Metropolitan Elevated R Co., 21 N. Y. St. Rep. 71; N. Y. Rubber Co. v. Rothery, 112 N. Y. 592; S. C. 119 Ib., 633; Billings v. Russell, 101 Ib. 226; Porter v. Smith, 107 Ib. 531; Cornish v. Graff, 36 Hun, 160; Cheney v. N. Y. C. & H. R. Co., 16 Ib. 415; Slattery v. Schwannecke, 44 Ib. 75; Averill v. Hurd, 15 Civ. Pro. 162; Fell v. Locomotive Works, 20 St. Rep. 577; Section 997 of the Code ; General Rules of Practice, rule 34; Dianese v. Allen, 14 Abb. Pr. N. S. 363, 366 ; Howland v. Woodruff, 60 N. Y. 73, 77; Jewell v. Van Stanberg, 58 Ib. 85, 93; Hoffman v. Ætna, Ins. Co., 1 Robt. 501, 524; Tweed v. Davis, 1 Hun, 252; Ryan v. Wayle, 4 Ib. 804; Smith v. N. Y. C. & H. R. R. R. Co., 30 Ib. 144; General Rules of Practice, rule 32; Perkins v. Hill, 56 N. Y. 87, 91; Lidgerwood Mfg. Co. v. Rogers, 57 N. Y. Super. 350, 355 ; Stevens v. N. Y. El. R. Co., 9 N. Y. Supp. 707; General Rules of Practice, rule 41; Special Rules of this Court, rule 4; General Rules of

      Practice, rule 35; Stuart v. Binsse, 4 Bosw. 616 ; Tyng v. Marsh, 51 How. 465; Parker v. Link, 26 Ib. 375; Tyng v. Marsh, 42 N. Y. Super. Ct. 236; Peck v. Goodberlett, 109 N. Y. 180, 189. The case of Abbott v. Thomas, 6 N. Y. Supp. 178. This case, at the first blush, seems to bear some resemblance to the case at bar. In reality there is a very wide distinction.

      Peckham & Tyler, attorneys, and Henry G. Atwater of counsel, for respondent, made these points:—
    I. The trial judge cannot be ordered to settle the case in any particular way. The defendants seem to claim that where a case on appeal is proposed, the" opposing party is bound if he claims any evidence has been omitted, to set forth .in his amendments the alleged omitted evidence, and that if he does not do so the judge is bound as a matter of law to certify that all the evidence is there. An extreme application of-this rule will show its absurdity. The court,cannot now order the trial j udge to certify that the evidence is all in case when it has not before it the stenographer’s minutes or the proposed case. New York Rubber Co. v. Rothery, 112 N. Y. 592.
    II. The defendants have lost by their course of conduct, and the orders of the court the right to make a new attempt to submit a case containing all the evidence.
   By the Court.—Truax, J.

The trial judge in settling the case struck out the following words : “ The foregoing case on appeal contains all the evidence taken upon the trial of this action,”—and of his action in striking out those words the appellant complains.

The respondent contends that the action of the trial judge was right, because, in fact, the case does not contain all the evidence taken upon the trial of this action. It therefore becomes necessary for us to determine the duties of the respective parties in making and settling a case.

This court will not consider questions of fact on appeal unless the case contains a statement of the kind above noted; but those words do not mean that the case in fact contains every word of evidence that was given on the trial. It means that it contains all of the material evidence that was given on the trial. Courts have frequently condemned the practice of transcribing stenographer’s minutes and calling them a bill of exceptions or a case.

It was the duty of the appellant to make the case, inserting so much of the evidence as he considered material to present the questions involved on the appeal. If the case as proposed by him did not fairly present the testimony, the respondent could then propose amendments, and it was then the duty of the trial judge to settle the case. Lidgerwood Manufacturing Co. v. Rogers, 56 N. Y. Super. Ct. 350.

In Perkins v. Hill, 56 N. Y. 87, it was said that when exceptions are taken to findings of fact and a case is made for the purpose of reviewing those findings, it must be assumed that all the evidence in support of the findings excepted to is inserted in the case. If the party making up the case omits any such evidence, it is the plain duty of the other party to cause to be inserted by amendment the evidence which he deems material to sustain the findings excepted to. This case was cited with approval by the same court in Porter v. Smith, 107 N. Y. 531, in which it was said, that under the new Code forbidding exceptions to findings of fact the respondent gets no warning or notice of an intention to review questions of fact unless the case certifies that all the evidence has been included. If it so certifies, the respondent must look to it that nothing which he deems essential is omitted; but if it does not so certify he is not in fault for supposing that questions of law only are intended to be reviewed and omitting to load the case with needless proof.

I think, under these decisions, it must be taken for granted that the case presented by the appellant did contain all of the material evidence that had been given on the trial. It so contained all the material evidence because the respondent had not seen fit to call the attention of the trial judge to any material evidence that had been left out. Such being the case, the appellant was entitled as of strict right to have the certificate in the case, and the order denying the motion was erroneous.

The learned judge before whom the case was tried, in his opinion on denying the motion, said, that the amendment striking out the above, certificate was allowed by him because the case on appeal as presented by the defendants did not contain all the evidence, and that his assent to a statement that it did contain all the evidence would have been false. But in this we think he erred. The case did contain all the evidence that had been deemed by counsel for the appellant and by counsel for the respondent material to the issues.

As was said by the Court of Appeals in the New York Rubber Company v. Rothery, 112 N. Y. 596, we cannot, of course, dictate to a trial court how a case shall be settled, and we dó not presume to do any such thing in this case. We can only say that, upon the facts appearing as they 'do here, the motion for the resettlement of the case ought to be granted to the end that the question may again be presented to the learned judge so that he may have an opportunity to resettle it in such manner as shall be consistent with the facts,—an opportunity which we are sure none would feel greater pleasure in embracing than the distinguished and learned judge who presided on the trial of this case.” On such resettlement the connsel for the respondent may, if he be so advised, make the case proposed by the appellant contain all the material evidence in the case. The evidence that was left out can be put in a short space. There is nothing to show that this evidence was left out in bad faith by the appellant. If it were so left out another question would arise.

The order appealed from is reversed, with costs, and the case is sent back to be resettled in accordance with the above opinion.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    DENNIS W. MORAN, Plaintiff v. GEORGE CONOMA, et al., Defendants. In the Matter of Mayer and Simon Loeb, Appellants.

      Action for mortgage foreclosure—Jurisdiction of court over case and defendants by service of summons by publication—When purchasers at sale must consummate the purchase.

    This action was brought to foreclose a mortgage on land, executed, by one of the defendants (George Conoma). Conoma was a sailor, and soon after the execution of the mortgage he left New York, and since then has not been heard from.
    The summons and complaint in the foreclosure action show that the plaintiff made George Conoma and all persons unknown, having or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees or next of kin, if any, of said George Conoma, and their respective husbands and wives, if any, all of whom and whose names, except as stated, are unknown to the plaintiff. Other persons are named as defendants in like manner and statements as in the case of Conoma. By an order of the court, duly entered in the action, service of the summons was directed to be made by publication and was so made under subdivision 6 of section 135 of the Old Code. On the 30th of December, 1889, judgment of foreclosure and sale was ordered and entered, based upon the service of the summons by such publication. On the sale, Simon Loeb and Mayer Loeb were the highest bidders for the property and the same was struck off to them, and they subscribed the terms of sale and paid ten per centum of the purchase money, but refused to further comply with the terms of sale, and on the third day of July, 1890, the order of this court was entered directing them to fulfil the terms of sale, from which said Simon and Mayer Loeb appeal.
    The appellants contend that the court could not enter judgment in the said . foreclosure action against the alleged unknown owners, without evidence that they were in fact unknown or absentees, or that defendant, George Oonoma, died without heirs at law or néxt of kin.

      Held, that Wheeler v. Scully, 50 N. Y. 667, is a direct authority against the appellants, and we are unable to distinguish the ruling of the Court . of Appeals in that case from the case before us, and the order appealed from is affirmed.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.

    Appeal frorii an order made at special term granting the plaintiff’s motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of certain mortgaged premises described in the decree of foreclosure and sale herein, to comply with the referee’s terms of sale and complete their said purchase.

      E. J. Myers, for appellants, argued :—
    That the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees, or that George Conoma died without heirs at law or next of kin. Code of Civil Procedure, § 451; Crandall v. Beach, 7 How. 271; Gardner v. Kraft, 52 Ib. 499. The right to issue a summons against a defendant or class of defendants who are unknown to the plaintiff, is dependent on a fact, to wit, the plaintiff’s ignorance, and this fact must be judicially established before the court obtains jurisdiction. The power to conclude a class of persons by a judgment entered and rendered upon a summons which in fact is never served upon them should be sparingly exercised, and the plaintiff required to conform to every requirement of law before the judgment is granted. The privilege of describing parties as unknown is not an arbitrary br obsolete right, but is dependent upon the plaintiff's establishing the u ignorance ” of «the “ name of a defendant” to entitle him to enter a decree or judgment binding the unknown defendant. Gardner v. Kraft, 52 How. 500. The Code of Civil Procedure (§ 1216) provides that judgment can only be entered upon application to the court after service of the summons “ otherwise than personally.” “ The court must require proof of the cause of action set forth in the complaint to be made.” The rules of the court •require that, “ If any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint.” Rule 60, General Rules of Practice. The rules of courts have the force and effect of statutes. Mayor, etc., v. Nichols, 18 Hun, 535. The order of reference provides “ that it be referred to Frederick Smyth, Esq., to take proof of the •facts and circumstances stated in the amended complaint.”
    There was a total failure to offer any proof before the referee of the parties claiming under George Conoma as alleged in the complaint, or who his heirs at law or next of kin viere, or whether or not there were any absentees or infants. The plaintiff was not personally examined before the learned referee, nor was any affidavit ever made by him of his ignorance of the true names of the heirs at law or next of kin of George Conoma, and no averment or allegation is contained in the entire record of such fact, except in the captions of the summons and other papers in the record. It is not a compliance with this provision of law, certainly a condition precedent, that the plaintiff must be ignorant of the name of the defendant, before a summons of this character can issue, for the plaintiff’s attorney to make oath that the attorney is ignorant, to sustain the summons in this case. The proof before the referee was directed to showing that the property in fact passed to Isabella Sauvan under the devise contained in the last will and testament of George Conoma, deceased. This view was adopted by the learned referee, and if he was mistaken then the court did not acquire jurisdiction over the “ unknown heirs (?) ” of George Conoma by reason of the failure to prove the facts necessary to sustain the summons adopted in this case.
    The learned referee finds : “ That the will of George Conoma was admitted to probate by the surrogate of the county of New York on the 1st day of February, 1859, as a will of personal property only.” Yet, without any other testimony as to the execution of the will of George Conoma than the record and adjudication of the surrogate admitting the said will “as a will of personal property only,” the learned referee found: “ That prior to the month of March, 1855, the said defendant George Conoma duly made and executed in due form of law his last will and testament by which he devised to the defendant Isabella Sauvan, under her name of Isabella Russell, the real property described in said complaint, in fee.” The presumption is that George Conoma, the mortgagor, had heirs at law to whom the equity descended, and “ the presumption is so violent that the estate of an intestate is transmitted to others by descent, that it can only be repelled by proof that the fact is otherwise.” Lawson on Presumptions, 198, 199, Rule 42 ; Harvey v. Thornton, 14 Ill. 217. It is this doubt that makes the title unmarketable upon the face of the record, because it appears, 1st, that sufficient proof has not been made that the plaintiff was ignorant of the true names of the heirs or next of kin of George Conoma, and the summons was therefore improperly issued, 2d, that the title to the property is in the heirs of George Conoma, and they are not concluded by the judgment.

      James Kearney and S. F. Higgins, for respondents, argued:—
    I. The appeal is before the court, without any specific, or any formal objection to ‘the title, to the mortgaged premises, which the referee’s deed would give the appellants, and the plaintiff, therefore, presents to the court, the law arising from the facts, found by the learned referee, and shown by the record. The jurisdiction of the court, over the subject matter of the action, is beyond question. The question for consideration is then, were all the necessary parties properly brought in, and did the court acquire jurisdiction over them? The defendant Conoma, the mortgagor, is brought before the court, as a party defendant, by the service of the amended summons, by publication in due form, for the reason that the proceedings for the probate of his will, resulted only in its admission to probate, as a will of personal property. The unknown persons, having or claiming an interest in the mortgaged premises, such unknown persons are all who could, by any possible disposition of the mortgaged premises, by operation of law or otherwise, acquire any interest therein, under or through the defendant Conoma, and were all in default. The defendant Isabella Sauvan, derives title as devisee, under the will of the defendant Conoma, and her whereabouts being unknown, she having disappeared and no tidings of her having been heard for more than twenty-five years, she and those claiming under her, as stated in the title of this action, were proceeded against by publication and were all in default. The defendant Elvira Josephine Sauvan, the lawful daughter of the defendant Isabella Sauvan, was proceeded against in this action, in the same manner as her mother, and made default. The same is true with respect to the defendant Henry H. Morange. The defendants O tersen and John J. Sauvan, absentee defendants, residing respectively, in New Jersey and Massachusetts, were also proceeded against by publication of the amended summons, and by properly mailing to their respective residences, copies of the amended summons, amended complaint, the order for the service of the amended summons by publication, together with the notice required by law, to the respective residences of these defendants. The defendant John J. Sauvan, the lawful husband of the defendant Isabella Sauvan, and father of ■ the defendant Elvira Josephine Sauvan, died after the commencement of this action, and after the service of the amended summons upon him, and after his time to appear, answer, or demur to the amended complaint had expired, without having appeared in the action or answered or demurred; thereupon Arthur V. Sauvan, his son, and Mary B. Sauvan, wife of Arthur V. Sauvan, were by order, properly made and entered, substituted as parties defendants in the place of said John J. Sauvan, and voluntarily appeared in the action and waived service of all papers, except notice of sale and of application for surplus moneys. The other parties defendants, either appeared in the action, or made default after personal service of the amended summons upon them.
    II. The unknown persons, parties defendants, are fully and properly designated in the amended summons, in this action. The title of this action, with respect to the designation of the persons, whose names were unknown, as heirs at law, devisees, grantees, assignees * * # * and next of kin, if any, of George Conoma, etc., is a compliance with the provisions of section 451, of the Code of Civil Procedure. The words, if any, show that the persons summoned are unknown, and could in no event mislead any person. Bergen v. Wyckoff, 1 Civ. Pro. Rep. 1, affirmed 84 N. Y. 659. The amended complaint contains averments, sufficient to support the designation in the title, of the action of the persons, parties defendants, whose names were unknown.
    III. The question, whether the proceedings are right when the court has given judgment of foreclosure and sale, cannot be raised by a purchaser. The purchaser gets a good title on all questions, except that which goes to the jurisdiction. - Gaskin v. Anderson, 55 Barb. 259. In De Forest v. Farley, 62 N. Y. 628, the court held, “If the court had jurisdiction of the parties and of the subject matter and power to render the judgment, his (purchaser’s) title is not affected by defects in the proceedings which rendered the judgment irregular, and in consequence of which it might have been set aside or reversed.
    IV. A purchaser will be compelled to complete his purchase where the record shows prima facie title against which there is no reasonable ground of suspicion. The purchaser must point out such ground: Williamson v. Field, 2 Sand. Ch. 533 ; In re Browning, 2 Paige, 64. When the court cannot discover, or rationally anticipate a defect in the title, it will order the purchaser to consummate • the purchase. Donnan v. Minard, 4 Paige, 441.
    V. The judgment in this action and the sale under it cannot injuriously affect any one but the parties and they do not complain-; on the contrary they ask to have the sale perfected. No one except the parties has the right to complain; and the' parties by not interposing any objection, either by answer or by demurrer, have, in effect, consented that the court might entertain jurisdiction of the action, and so long as the judgment is unreversed, they are bound by it and the proceedings under it. As no one but the parties to the action can call in question the purchaser’s title, and as they are bound by the judgment, there is no reason why the sale should not be consummated. Blakeley v. Calder, 15 N. Y. 617.
   By the Court.—Truax, J.

The action was brought to foreclose a mortgage made in February, 1853, by the above named George Conoma. Shortly after making the mortgage the said George Conoma, who was then a sailor, left New York and has never since been heard from. The plaintiff made said mortgagor, George Conoma, a party to the action, and he also made “ all persons unknown having, or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees, or next of kin, if any, of said defendant, George Conoma, and their respective husbands, and wives, if any, all of whom and whose names except as stated are unknown to the plaintiff.” There were other persons made defendants with the same general description. It is unnecessary to set out in full the names of those so made defendants.

The appellants contend that the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees, or that the said George Conoma died without heirs at law or next of kin, and refer to section 451 of the Code of Civil Procedure, and to certain eases as authority for that contention.

Section 451 says, that “ Avhere the plaintiff is ignorant of the name, or part of the name, of a defendant, he may designate that defendant in the summons * * * * by a fictitious name, or by as much of his name as is known, adding a description identifying the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description tending to identify him. In either case the person intended is thereupon regarded as a defendant in the action, and as sufficiently described therein for all purposes, including service of the summons as prescribed in article second of the last title.” This section is composed of section 175 and part of section 135 of the old Code.

We are of the opinion that Wheeler v. Scully, 50 N. Y. 667, is a direct authority against the appellants in this action. That was an action for the foreclosure of a mortgage executed by the defendant Scully, and as in this case, in that, the mortgagor, Scully, left the state in the year 1853, and has not been since heard from.

Service of the summons was made under subdivision 6 of section 135 of the old Code, which is as follows: “ In actions for the foreclosure of mortgages on real estate * * * if any party or parties having any interest in or lien upon such mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot with reasonable diligence be ascertained by him, and such fact shall be made to appear by affidavit to the court * * * such court * * * may grant an order that the summons be served on such unknown party or parties by publishing the same * * * which publication shall be equivalent to a personal service on such unknown party or parties.”

In Wheeler v. Scully, supra, the printed book on appeal shows that the action was brought against “ Patrick Scully, if living, and his wife, if any, whose name is unknown to plaintiff, and the widow, devisees, heirs at law and next of kin of the said Patrick Scully, if deceased, who are unknown to the plaintiff.” Judgment was perfected in that action, and upon the sale the premises were bid off by one Cabre. He refused to take title and complete the purchase upon the ground that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs at law were infants as that they were adults, and if infants, the judgment did not bar them as the service of summons was not sufficient as against infants : whereupon a motion was made to compel him to complete the purchase. It was held by the Court of Appeals that if it be conceded that the presumption was that the mortgagor was dead—as to which the court expressed doubt—and if the unknown heirs were infants, they were bound by the service, as the subdivision of section 135 above referred to made no exception in case the unknown defendants were infants; and that if otherwise, there was no presumption that they were infants, and this was for the purchaser to show in order to justify his refusal.

We are unable to distinguish Wheeler v. Scully, supra, from the case before us.

The order appealed from is affirmed with costs to the plaintiff.

Sedgwick, Ch. J., and Dugro, J., concurred.


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    PIETRO ALTIERI, Respondent v. DORE LYON, Appellant.

      Mechanic's lien—Section 15, chapter 342, of the Laws of 1885, in reference to the recovery of a judgment, for a claimant, against the parties to the action in case of his failure to establish a lien, considered and construed.

      Held, that the evidence in this case does not warrant the findings of fact and conclusions of law made at the special term. The transactions between Lyon and Smith were valid transactions. Under them Smith became the owner of the property, subject to certain mortgages to Lyon and to other’s, and as such owner he had a right to dispose of the property. There was no evidence to show that Lyon remained in the actual possession of the property. On the contrary the evidence rather shows that Smith was in the possession of the property, and if Lyon was upon the property after the conveyance to Smith, he was there for the purpose of protecting his interests as a mortgagee of the same. Smith failed to fulfil his contract with Lyon, and the mortgages becoming due, Lyon had the right to foreclose these mortgages. The agreement between Smith and Lyon in regard to giving up a note made by Smith’s wife to Lyon, and also the relinquishment of the right to foreclose the mortgages, constituted a valuable consideration for the conveyance of the property by ■ Smith to Lyon, through Hayden. The findings of fact did not warrant the conclusion of law that the plaintiff acquired a good and valid lien against the property under the laws of the state of Hew York.
    The plaintiff contended that section 15 of chapter 342, of Laws of 1885, to the effect that whenever in an action brought under the act any claimant shall fail to establish a valid lien, he may nevertheless recover a judgment therein against the party or parties to the action for such sum or sums as may appear to be due to him, and which he might recover in an action upon a contract against the said parties, entitled him to judgment against Lyon. Held, that the phrase in the statute “ Judgment for such sum or sums as may appear to be due to Mm ” refers to the sum or sums that may appear to be due to him from the person with whom he made the contract to perform labor or furnish materials. This person was not the defendant Lyon. Certainly it was not the intention of the legislature to allow a person to bring an action to foreclose a mechanic’s lien, and then if he be defeated in that action to allow him to recover a judgment for any sum that may be due him on any contract between him and the defendant. It was the intention of the legislature to allow the mechanic or the furnisher of materials to recover a money judgment if his action to foreclose his lien was defeated by reason of any informality in the lien, or by reason of any neglect to enforce his lien within the time required by law.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal by the defendant from a judgment entered in favor of the plaintiff upon the decision of the court at special term. The action was brought to foreclose a mechanic’s lien.

      Bartow S. Weeks, attorney, and Frederick H. Man of counsel, for appellant.

      Thornall Squires & Constant, attorneys, and L. Laflin Kellogg of counsel, for respondent.
   By the Court.—Truax, J.

The complaint alleges that at a certain time the defendant, Lyon, was the owner of certain premises; that thereafter he transferred the said premises to one Smith upon the understanding and agreement that said Smith should immediately erect sixteen dwelling houses thereon for the said defendant Lyon; that such conveyance was made without legal consideration, and as a cover, and with the fraudulent purpose and intent on the part of the defendant Lyon to escape any personal liability on his part for the expense incurred for the improvement hy said buildings of said premises for his benefit, and to hinder, delay and defraud the mechanics and laborers doing work and furnishing materials for said buildings. That thereupon and thereafter said Smith entered into a contract with the plaintiff to build the stone foundation walls of the said houses to be erected on said property, and that the defendant Lyon informed the plaintiff that he, said Lyon, had the money to build (the houses, and that if he, the plaintiff, would enter into a contract with said Smith to build said stone foundation walls, he, Lyon, would pay or cause to be paid to the plaintiff every two weeks the amount then due him for building the walls.

That in pursuance of said agreements the plaintiff did certain work, and that there is now due him the sum of $910.66, under said agreements.

That after the plaintiff had done said work Smith conveyed the premises to one Hayden, who conveyed them to the defendant Lyon. That such transfers were made without consideration and were made for the purpose of hindering, delaying and defrauding the mechanics, laborers and materialmen who had furnished work and materials on said property, and to prevent the property being subject to any possible judgment liens against said Smith.

The answer was a general denial except that the conveyances from Lyon to Smith, from Smith to Hayden, and from Hayden to Lyon, were admitted.

The court at special term found, as matter of fact, that after the recording of the deed from Lyon to Smith, Lyon remained in actual possession of the property, and, as matter of law, that notwithstanding the making and recording of the said deed, the defendant Lyon remained the equitable and true owner of the premises therein described. It also found that the deeds from Smith to Hayden and from Hayden to Lyon were made without consideration, and that the transfers of the property by Smith to Hayden and Hayden to Lyon were a legal fraud upon the plaintiff and the other mechanics and materialmen who had performed work upon and furnished material for the buildings upon said property, and, as matter of law, that said conveyances from Smith to Hayden and from Hayden to the defendant Lyon was a legal fraud upon the plaintiff and the other mechanics and materialmen who had performed work upon and furnished material for the buildings upon the said property.

We do not think that the evidence warrants the findings of fact made at the special term. The transactions between Lyon and Smith were valid transactions. Under them Smith became the owner of the property, subject, however, to certain mortgages to Lyon, and to others. As such owner he had the right to dispose of the property.

There is no evidence to show that Lyon remained in the actual possession of the property. The evidence rather shows that Smith was in the possession of the property. If Lyon was on the property after the conveyance to Smith, he was there for the purpose of protecting his own interest as mortgagee who was under a contract to advance money to Smith the builder. The evidence shows that Smith became unable to carry out his contract with Lyon to erect certain buildings on said premises, and that because of his said inability the mortgages to Lyon became due and Lyon had the right'to foreclose these mortgages. By an agreement between Smith and Lyon, and for a valuable consideration, namely, the giving up of a note of $1,500, made by Smith’s wife to Lyon, and also the giving up of the right to foreclose the said mortgages, Smith conveyed to Lyon, through Hayden, the said property.

There is no evidence to show that the property was worth any more than the amount that Lyon paid for it, and the judgment in favor of the plaintiff cannot stand unless it may be sustained upon a point which will be hereafter considered.

It was alleged in the complaint that Smith and Lyon, to protect and relieve the defendant Smith from any personal liability by reason of his having made any agreement about any work upon the said premises or materials therefor, entered into a written agreement whereby the defendant Lyon, for a good and valuable consideration, promised and agreed to and with the said Smith, that he would pay and hold said Smith harmless from the amount then due to the plaintiff. This was denied by the defendant.

The trial court found in substance as alleged in the complaint in this particular. It also found that by reason of the facts stated in the findings of fact and the filing of a notice, the plaintiff acquired a good and valid and sufficient lien against the said buildings and premises above described under the laws of the State of New York.

It may be that the agreement above referred to would authorize the court in holding that the defendant Lyon had agreed with Smith to pay the amount due the plaintiff, but we are of the opinion that such finding of fact did not, with the other findings of fact in reference to the filing of lien and so forth, warrant the conclusion of law that the plaintiff had acquired a lien.

The plaintiff contends that section 15 of chapter 342 of the Laws of 1885, which is to the effect that whenever in any action brought under the provisions of the said act any claimant shall fail for any reason to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a contract against the said party or parties, entitled him to judgment against Lyon.

We are of the opinion that the phrase “ judgment for such sum or sums as may appear to he due to him,” refers to the sum or sums that may appear to be due to him from the person with whom he made the contract to perform labor or furnish materials. This person was not the defendant Lyon. Whether or not he has a cause of action against Lyon upon his promise contained in Exhibit G., is not necessary for us to determine. Certainly it would not be right, and we are of the opinion that it was not the intention of the legislature, to allow a person to bring an action to foreclose a mechanic’s lien, and then if he be defeated in that action, to recover a money judgment for any sum that may be due on any contract between him and the defendant. It was rather the intention of the legislature to allow the mechanic or the furnisher of materials to recover a money judgment if his action to foreclose his lien was defeated by reason of any informality in the lien, or by reason of any neglect to enforce his lien within the time required by law.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Dugro, J., concurred.


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    ELI HYMAN, Appellant v. THE BOSTON CHAIR MANUFACTURING COMPANY, Respondent.

      Lease.—Action on breotch of covenant for the quiet and peaceful enjoyment of premises leased.

    No special damages for the eviction was alleged in the complaint, and the measure of damages is the value of the unexpired term less the rent reserved. Certain questions tending to show special damages were rightfully ruled out because special damages had not been pleaded. Neither of the witnesses, offered as experts, had any knowledge on the subject about which they were questioned, and their opinions were properly excluded.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Samuel F. Hyman, attorney and of counsel for appellant.

      Benjamin E. Hall, attorney, and James A. Dennison of counsel, for respondent.
   By the Court.—Truax, J.

No special damages were alleged in the complaint.

In an action brought to recover damages for a breach, of a covenant of quiet enjoyment contained in a lease, the measure of damages is the value of the unexpired term less the rent reserved. Mack v. Patchin, 42 N. Y. 167.

Certain questions tending to show special damages were rightly ruled out because special damages had not been pleaded.

Plaintiff attempted to show the value of the unexpired term by his own testimony and by the testimony of another witness. This testimony was objected to on the ground that neither of the witnesses had qualified as experts, and the objection was sustained, and the plaintiff duly excepted. This ruling was not erroneous. While it takes but little special knowledge to qualify a witness to testify as an expert, still the witness should have some knowledge of the subject about which he is questioned in order to entitle him to give an opinion. In this case neither of the witnesses appear to have any knowledge on the subject about which they were questioned. One of the witnesses testified that he had rented premises, but where the premises were, whether in this country or another, did not appear. The other witness testified that he had rented premises once, and this witness, by the way, was a boy of sixteen years of age, but the premises so rented by him were at some distance from the premises in question. And, moreover, it does not appear whether they were of the same nature 1 as the premises in question or not. Neither one of the witnesses was a competent witness on this point.

Judgment and order affirmed, with costs.

Sedgwick, Ch. J., concurred.


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    HERMAN S. MENDELSON, Respondent v. LUCIUS F. SHEFFIELD, Appellant.

      Action to recover the amount of three promissory notes made by defendant.

    The defence was that the notes were obtained from the defendant by means of false and fraudulent representations. Held, that the rulings of the court at trial term were not erroneous, and the evidence in regard to the false and fraudulent representations was not sufficient to warrant the jury in finding that the notes were obtained by fraud.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Walter D. Edmonds, for appellant.

      Fullerton & Rushmore, for respondent.
   By the Court.—Truax, J.

The case is so poorly prepared that it is difficult to tell what exceptions were taken by the appellant. It contains exceptions taken by the plaintiff; exceptions by the defendant, and “ exceptions.”

It was not error for the trial judge to sustain the objection to the question asked the witness Parr, “ Have you any of the notes against him (the defendant) except those that are in suit ? ” The question was immaterial, and neither showed nor tended to show that the notes in suit were obtained by means of false and fraudulent representations.

The defendant was put on the stand and testified that “he (Parr) always reported that he was trying to do all he could but he never got any evidence. I believe implicitly that he was doing all he could.” This was stricken out, and the defendant excepted. I infer that the last sentence is that portion of the answer that was stricken out, because the first sentence is responsive to the question that was asked while the last is not. It was rightly stricken out also because the belief of the defendant was immaterial.

The next alleged error to which our attention has been called, is the ruling of the court in sustaining an objection to the question asked the defendant, “Tell me, as far as you can recollect, what statements were made to you during this period by Doctor Parr in reference to the services which he was rendering under this sixty dollars a week arrangement ? ” It is true that this question was ruled out, but subsequently the witness was asked, “ I don’t want your belief, but what he said to you—the substance of it,” and this was allowed and the witness gave the statements that were made to him by Doctor Parr. Certain conclusions and statements made bv the defendant, statements not responsive to questions asked, were stricken out, and the defendant excepted.

The rulings of the court were not erroneous. Many of the answers stricken out had nothing whatever to do with the case.

At the close of the case the defendant moved to dismiss the complaint and for judgment on the ground that the plaintiff had failed to adduce testimony sufficient to entitle him to a judgment in view of the defendant’s testimony.

The claim of the defendant is that he had adduced evidence showing that the notes in suit were obtained from him by fraud, and that plaintiff being a subsequent transferee of these notes was bound to prove that he had no notice or knowledge of the alleged fraud. But even if the defendant had adduced evidence showing that the notes were obtained from him by fraud, this evidence was testimony given by himself, and as he was an interested witness, it still was a question for the jury to say how much or what credence they should give to his testimony.

I am also of the opinion that the testimony was not sufficient to warrant the jury in finding that the notes were obtained by fraud.

The defendant requested the court to charge “ That the defendant having inserted into this case proof of fraud the burden of proof shifts and is upon the plaintiff to overcome that testimony as to fraud.” The court refused to charge except as it had already charged, and the defendant duly excepted. The court had • already, in substance, charged that if any of the notes were obtained from the defendant by means of the false and fraudulent representations of' the payee (Parr), they must find for the defendant as to the note or n’otés. This was as favorable for the defendant as he had a right to ask, and the court was not bound to go over it again, or to charge it in the exact words proposed by the defendant’s counsel.

Judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., concurred.


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    ARTEMUS H. HOLMES, et al., Appellants v. GEORGE S. EVANS, et al., Respondents.

      Referee, Motion to open and vacate report of, and to take further testimony,' etc.

    It was contended by appellants’ counsel that, under section 724 of the Code of Civil Procedure, the court had power to grant the relief sought in the motion.

      Held, that the only way in which the relief plaintiffs desire can be properly sought is by a motion for a new trial upon the ground of newly discovered evidence; to hold otherwise would establish a vicious precedent, and contrary to settled rules. There can be no relief under section 724, for there has been no mistake, inadvertence, surprise or neglect, within the meaning of the terms as used in that section.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal from an order denying a motion made by the plaintiffs to open and vacate the report and findings of the referee herein, and to take the testimony of another witness, and to direct the referee to proceed herein as if his said report had not been delivered.

      Addison Allen, attorney, and William B. Hornblower of counsel, for appellants.

      John C. Tomlinson, for respondents.
   By the Court.—Truax, J.

It was contended on the argument that the court had powgr under section 724 of the Code of Civil Procedure to grant the relief asked for. That section provides that the court may in its discretion * # * relieve a party from a judgment order or other proceedings taken against him through his mistake, inadvertence, surprise or excusable neglect.

The judge at special term, said on denying the motion, that the only way in which the relief plaintiffs desire can properly be sought is by a motion for a new trial upon the ground of jiewly discovered evidence, and that to hold otherwise would be to aid in the establishment of a vicious precedent, and one contrary to settled rules, and that there can be no relief accorded under section 724, as there has been no mistake, inadvertence, surprise or neglect within the meaning of the terms as used in that section.

We are of the opinion that the learned judge did not err in making the order from which the appeal is taken. Section 724 has no application to motions for new trial on the ground of newly discovered evidence. First National Bank v. Heaton, 6 Thompson & Cook, 38. The wording of the section is plain enough. It authorizes the court to relieve a party from his mistake, &c. Here there was no mistake, no inadvertence, no surprise, no excusable neglect.

Perhaps a motion for a new trial on the ground of newly discovered evidence would lie, but such is not this motion. In such a motion a case should be made and presented to the court. Thayer Manufacturing Company v. Steinan, 58 How. 315.

The order appealed from is affirmed, with costs.

Sedgwick, Ch. J., concurred.


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    MARGARET O’NEIL, Respondent v. THE DRY DOCK, EAST BROADWAY and BATTERY RAILROAD COMPANY, et al., Appellants.

      Negligence, action for damages caused, thereby.

    The motions to dismiss the complaint were rightfully denied. There was ' evidence tending to show, and from which the jury could find, the negligence of the defendants, and each of them, and, therefore, the question of negligence was one for the jury and not the court. None of the various exceptions to the admission or rejection of testimony were well taken.
    It was net error to allow the plaintiff to show by a person who had been a driver of a horse car for years, the space within which a driver could stop a car with one horse attached to it when the horse is on a moderate trot and the ground is level, nor to allow the plaintiff to show by a person who had driven trucks for years, the time and space within which a loaded truck could be stopped. The plaintiff testified to the fact and claimed that soon after the accident she became deaf in her left ear, and that the deafness continued to the time of the trial. A witness, who was a physician and surgeon, was asked, after the facts had been recited to him, to what cause he would attribute the deafness. This question was objected to as incompetent by one of the defendants, and by the other of the defendants on the ground that the witness had not made any examination of the head, and that he was not skilled in that department of medicine.

      Held, that it is not necessary that the witness should be a specialist in the department of medicine relating to the bead or the organs of hearing to qualify him to answer the proposed question. He is supposed to have enough knowledge of medicine and surgery to enable him to give testimony that would be entitled to weight and consideration upon the question about which he was asked.
    The railroad company defendant requested the court to charge, that incase of a collision between a street passenger car and a truck or wagon, the presumption of negligence is ordinarily against the driver of the wagon. The court declined to so charge. This declination was not error, for as between the plaintiff and the two defendants there was no such presumption.
    The railroad company defendant also requested the court to charge, that its car had the right of way, and that the driver of the truck, owned by defendant Westing, was bound to respect the right of the company-defendant to the use of so much of the street, at the place in question, covered by the track and included within the rails and required for the passage of defendant’s car, and the court declined so to charge. This declination was not error. The courts have ruled in some cases that the passenger car had the right of way, but never in a case like this. But assuming the right of way, as claimed in the request, the company-defendant was bound to use care for the protection of a passenger from harm. It cannot rely upon this right of way when by such reliance injury would come to its passenger.
    The court rightfully charged that the pain and suffering of the plaintiff was not limited to mere physical pain, but her mental suffering "and anguish could be considered by the jury.
    Before Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendants. Each of the defendants appeared separately and denied the negligence.

      John M. Scribner, for The Dry Dock, East Broadway and Battery Railroad Company, appellant.

      Jacob F. Miller, for Theodore Westing, appellant.

      G. Washbourne Smith, for respondent.
   By the Court.—Truax, J.

The motions to dismiss the complaint were rightly denied. There was evidence tending to show, and from which the jury could have inferred, the negligence of each one of the defendants, and, therefore, the question of negligence was one for the j ury and not for the court.

There were various exceptions to the admission or rejection of testimony. None of them were well taken.

It was not error for the plaintiff to show by a person who had been a driver of a horse car for years, how long, or within what space a driver on a car could stop a car which has one horse attached to it when the horse is on a moderate trot and the ground is level. Nor was it error to show by a person who had driven trucks for years, within what time and what space a loaded truck could be stopped.

The plaintiff contended that shortly after the accident she found that she was getting deaf in her left ear, and that that deafness continued up to the time of the trial. A witness, a physician and surgeon, was asked, after the assumed facts had been recited to him, to what he would attribute the deafness. The question was objected to by one of the defendants as incompetent, and by the other of the defendants on the ground that the witness had not made any examination of the head, and that he was not skilled in that department of medicine. The last objection is somewhat indefinite. It is difficult to determine whether the objector meant that the witness was not skilled in the department of medicine relating to the hearing; but it is not necessary that the witness should have been a specialist in order to entitle him to testify upon the subject he was asked about. He is supposed to have enough knowledge of medicine and surgery to enable him to give testimony that would be entitled to some weight upon the question about which he was asked.

The defendant Westing was asked if the driver through whose alleged negligence the accident was alleged to have happened, was a careful driver, and this question was objected to and the objection was sustained. This ruling was not erroneous. The question in dispute was not the negligence of Westing in keeping a servant known to him to be careless or incompetent. The contention was that the driver was negligent at this particular time, and this contention was not controverted by showing that up to that time he had not been negligent. There were some other exceptions to evidence taken, but they are not material.

The defendant Westing requested the court to charge in a certain way. This the court declined to do. I do not find that there was any exception taken to this refusal, and, therefore, the question of alleged error in so declining cannot be considered.

The defendant, The Dry Dock, East Broadway and Battery Railroad Company, requested the court to charge, that in case of a collision between a street car and a truck or wagon, the presumption of negligence is ordinarily against the driver of the wagon, and the court declining to do so, duly excepted. This ruling was not erroneous. As between the plaintiff and the two defendants there was no presumption of the kind. That one of the defendants was negligent whom the evidence showed to be negligent.

The defendant, The Dry Dock, East Broadway and Battery Railroad Company, also requested the court to charge that the car of the defendant, The Dry Dock, East Broadway and Battery Railroad Company, had the right of way, and that the driver of the truck owned by the defendant Westing was bound to respect the superior right of the defendant, The Dry Dock, East Broadway and Battery Railroad Company, to the use of so much of the street at the point ¡.or place in question covered by the track or included within the rails of said defendant and required by the passage of said defendant’s car, and the court declining so to charge, duly excepted. This ruling was not erroneous. It is true that the courts have ^aid that in some cases the car has the right of way, but never has it said so in a case of this kind. But even if the car did have the right of way, it still Avas bound, as far as the plaintiff was concerned, to use at least ordinary care to protect her, its passenger, from harm. It cannot rely upon this right of way, when by so doing injury would come to its passenger.

The court charged that pain and suffering are not limited merely to physical suffering, but they extend to mental suffering and anguish, and to this the defendants excepted. We do not think that this ruling was erroneous. There was evidence that tended to show that the plaintiff did suffer mental anguish. She had had two teeth knocked out and two broken. She was badly bruised on the left shoulder, left side, left hip, and on the mouth. She suffered terrible pain for four months in her head, and had not up to the time of the trial been able to sleep more than an hour at a time, and had been in a very nervous condition. She was easily frightened and always imagined that there was some one coming after her. This tended to show that she did suffer mentally.

The judgment and order appealed from are affirmed, with costs.

Dugro, J., concurred.


author: By the Court.—Dugro, J.

text:
    W. H. HAYDN MILLER, Appellant v. WILLIAM H. CURTISS, Respondent.

      Action to recover damages for false and fraudulent representations in regard to shares of capital stock.

      Held, that the dismissal of the complaint on the trial of this action was error, for there was evidence in the case from which a jury could properly conclude that certain statements as to existing facts, set forth in the complaint as having been made by defendant, were false, and made by the defendant with intent to deceive the plaintiff, and thereby plaintiff was deceived and induced to purchase the stock in question. The evidence and the case should have been submitted to the jury.

      The evidence that the respondent undertook to buy for the appellant certain stock owned by one Allen, thus acting as the agent of appellant, and the subsequent sale of his own stock to appellant, was a fraud in law for which the appellant could rescind and recover the money paid, furnishes another sound reason for the reversal of this judgment in accordance with the case of Conkey v. Bond, 36 N. Y. 427.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal from a judgment entered upon the dismissal of the complaint at the trial term, and from an order denying a motion for a new trial upon the minutes of the trial judge.

      Marshall P. Stafford, attorney and of counsel, for appellant.

      Leavitt & Keith, attorneys, and John B. Leavitt of counsel, for respondent.
   By the Court.—Dugro, J.

Plaintiff brought his action to recover the amount paid defendant for 15 shares of the Stead Boiler Company. He claims to have been induced to purchase the stock by false and fraudulent statements of defendant, upon which he relied.

The dismissal of the complaint was error, for there-was evidence in the case from which a jury could properly conclude that' certain statements as to existing facts, set forth in the complaint as having been made by defendant, were false, and made by the defendant with intent to deceive, and that the plaintiff was deceived by them and induced to purchase the stock in question. The existence of this evidence was sufficient to require the submission of the case to the jury.

An application of the law as stated in Conkey v. Bond, 36 N. Y. 427, to the facts of this case, requires for another and a different reason the disposition made of this appeal.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    ANDREA CACCAVO, as Administrator, etc., Appellant v. ROME, WATERTOWN AND OGDENSBURG RAILROAD COMPANY, Respondent.

      Security for costs, when required by statute and when the court, in its discretion, may direct the same.

    Section 3271 of the Code of Civil Procedure provides, that in an action brought by or against an administrative capacity, the court may, in its discretion, require the plaintiff to give security for costs.
    In this case, the court, on motion, did so require, and the only question presented on the appeal is whether any grounds existed for the exercise of such discretion. Held, that in the present case it seems in harmony with the Code to assume the responsibility of the plaintiff, if the administrator satisfy the court that he has a good cause of action, but the allegations of the complaint are upon information and belief, and the court is not informed of the sources of the information. This fact, accompanied by the specific statements in the affidavits submitted by the defendant in regard to the circumstances of the accident, supplied sufficient grounds for the exercise of the discretion of the court below. Upon the concession of pecuniary irresponsibility on the part of plaintiff, it certainly became his duty to satisfy the court that he had a good cause of action against the defendant, which he failed to do.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal from an order requiring plaintiff to file security for costs.

      Edward J. McGuire, for appellant.

      Thomas Spratt, for respondent.
   By the Court.—Dugro, J.

By section 3271, Code Civil Procedure, it is provided that in an action brought by or against an administrator in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs.

In the present case the court did so require, and upon this appeal the only question presented is, whether any grounds existed for the exercise of a discretion.

In order to determine this question it is well to inquire into the general principles upon which the Code provisions as to security for costs were based.

. It seems to have been deemed wise by the codifiers to assume the pecuniary responsibility of plaintiffs, except in certain specified cases where from the nature of the case irresponsibility was apparent, or deemed proper to be assumed. In the excepted cases the plaintiffs were required by the Code provisions to give security for costs, for instance, as of the class first referred to, an infant whose guardian ad litem had not given security, and in the second class, among others, non-residents and foreign corporations. Where irresponsibility was certain, security was generally required; the right of application for leave to sue in forma pauperis, however, being accorded.

In a case such as the present, it seems in harmony with the policy adopted by the codifiers to assume the responsibility of the plaintiff. If irresponsibility is, however, conceded, it would naturally follow, that this circumstance would suffice to make a prima facie case for the requirement of security. It may be sufficient to meet this case that an administrator satisfy the court that he has á good cause of action.

In the case presented sufficient appears to make it unnecessary to pass upon the question above referred to. It seems that the allegations of the complaint are upon information and belief, and that the court was not informed of the sources of the information. This fact, in view of the specific statements in the affidavits submitted on behalf of the defendant as to the circumstances of the accident, supplied sufficient ground for the exercise of discretion by the learned judge below.

Upon the concession of pecuniary irresponsibility, it certainly became the duty of the plaintiff upon the motion to satisfy the court that he had a good cause of action, and this it must be assumed he failed to do.

Order affirmed, with $10 costs.

Sedgwick, Ch. J., and Truax, J., concurred.


author: “ Freedman, J. Per Curiam.

text:
    DANIEL W. TALLMADGE, et al., Appellants v. PHINEAS C. LOUNSBURY, as Treasurer, etc., Respondent.

      Referee, report of, within the meaning of the Gode: what may be deemed, sjtfficient to prevent the termination of the reference and to permit the cause to proceed as if there had been no reference.

    Within sixty days after the submission of this cause to the referee, there was filed a document made by the referee, that assumed to be a decision or report, and upon it a judgment was entered in favor of the defendant. A notice was given to end the reference on the ground that no report had been filed or delivered as provided in the Code, and, thereupon, the plaintiffs made a motion to the court to vacate and set aside or modify the judgment entered on the ground that the same is void for want of a referee’s report, etc. On the motion the court below amended the judgment roll in certain particulars, and denied the motion to vacate the judgment.

      Held, that the document claimed to be a report or decision of the referee was, in its beginning, a statement by the referee of reasons for his final action, and it ended as follows: “ For the reasons stated I am forced to the conclusion, that whoever may owe the bill in suit, the defendant certainly does not, and I therefore believe the bill ought to be dismissed upon the merits, with costs. Judgment accordingly. ” This is substantially a direction that there should be judgment for the defendant, that the complaint be dismissed, although the document contained no findings of fact as required by the Code. This omission of findings of fact did not prevent the document having the character of a report, even if such report be extremely imperfect and an insufficient foundation for a judgment. The referee had made, within the intent of section 1019 of the Code, his report within sixty days from the submission of the case, and having made it, such as it was, the plaintiff was not entitled to end the reference and to have the cause proceed as if there had been- no reference. -The judge below was right in refusing to vacate the judgment under the notice given. This conclusion leaves the parties to the appropriate remedy in a case where there has been a report, and judgment cannot be properly entered upon it. As the case was presented on the motion, it was immaterial that the decision had not been made part of the judgment roll. Under section 1019, it was enough that the decision of the referee had been filed within sixty days.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal from an order denying motion to vacate a judgment. The case appears fully from the opinion of the judge at special term, which is as follows:
   “ Freedman, J.

Since the entry of the judgment herein on Nov. 12, 1890, the plaintiffs served a notice upon defendant’s attorneys to the effect that they elected to end the reference heretofore ordered herein, on the ground that more than sixty days had elapsed from the time when the cause was finally submitted to the referee ; and that no written referee’s report had been filed with the clerk of this court, or delivered to the attorneys for any of the parties : and they now move to vacate and set aside the judgment entered against them for the costs of the action; because, as they allege, it is void for want of a referee’s report which disposes of the merits of the action.

“ The action was brought to recover the amount of a balance alleged to be due for printing, folding, directing and mailing circulars and other literature during the presidential campaign of 1888, and in furnishing materials, postage, expressage and messenger service therefor; and also for the occupation of certain rooms.

“ The issues raised by the answer were referred to a referee to be heard and determined by him. In such a case it is provided by § 1022 of the Code of Civil Procedure, that the report of the referee must state separately the facts found, and the conclusions of law; and that it must direct judgment to be entered thereon.

It appears that at the close of the evidence, both parties submitted requests for findings; that the referee by marginal endorsements noted his disposition of these requests; and that both sets were filed together with a full opinion within 60 days after the cause had been finally submitted to him. As no other report was made, the question now is, whether these three papers, taken together, constitute a sufficient report. If they do, the judgment must be sustained. It is clear that neither of them, considered by itself, fulfils the requirements of the Code; and that considered collectively, they present formal defects. Nor is the practice observed in this case to be encouraged.

“ Orderly practice requires a more formal report.

“ But after all, each case depends upon its own facts and should be determined according to the rights of the respective parties as they are made to appear. In this case there are not only the usual marginal endorsements showing the disposition of each request, but the referee attached his signature as referee to each set of requests passed upon. One of the conclusions of law thus found and evidence is that the complaint must be dismissed and judgment rendered for the defendant upon the merits with costs.’ The findings were filed with the clerk of this court on October 29, 1890; at the same time there was also filed with the said clerk an opinion rendered by the referee which the referee termed a memorandum of decision.’ In this the referee discussed the points made by the respective parties, and the state of the evidence,- and thereupon stated the conclusions arrived at, and then concluded as follows, viz.: " For the reasons stated I am forced to the conclusion that whoever may owe the bill in suit, the defendant certainly does not, and I therefore believe the bill ought to be dismissed upon the merits, with costs. Judgment accordingly.’ At the end of all this the referee attached his signature as referee. Now it is true that this opinion or ‘ memorandum of decision,’ although filed with the other papers referred to within sixty days after the final submission of the cause, was not made by the clerk a part of the judgment roll. The omission to - do so affects only the judgment roll, but does not affect the report of the referee. Moreover the defect may be cured, nunc pro kmc. My final conclusion is that in this casé the two sets of findings and the opinion or memorandum of decision hereinbefore referred to, taken together constitute a sufficient report which disposes of the merits of the action; that -the clerk should be ordered to attach nunc pro kmc to said opinion or memorandum of decision to the judgment roll and that the tnotion of the plaintiffs; should be denied but without costs.”

Nichols & Bacon, attorneys, and Alexander S. Bacon, of counsel, for appellants.

Blanchard, Gay & Phelps, for respondent.

Per Curiam.

The action had been referred to a referee to hear and determine. Within sixty days from the time the cause was submitted, there was filed a document made by the referee. This was assumed to be a decision or report of the referee, and upon it judgment was entered in favor of the defendants. After the expiration of the sixty days a notice was given to end the ' reference on the ground that no report had been filed with the clerk or delivered to one of the attorneys, as provided" by section 1019 Code Civil Procedure, and, thereupon, the motion below was made and denied.

The ground taken by the plaintiffs was that the document referred to was not a decision or report of the referee, within the meaning of the Code. That document was, in its beginning, a statement by the referee of reasons for his final action, and it ended: “ For the reasons stated I am forced to the conclusion that whoever may owe the bill in suit, the defendant certainly does not, and I therefore believe the bill ought to be dismissed upon the merits, with costs. ■Judgment accordingly.”

This is substantially a direction that there should be judgment for the defendant that the complaint be dismissed. Although it is the case that the documents contained no findings of fact, as required by the Code, this omission did not prevent the document having the character of a report, even if such report be extremely imperfect and an insufficient foundation of a judgment. The referee had made within the intent of section 1019, his report within the sixty days, and having made it, such as it was, the plaintiff was not entitled to end the reference and to have the cause proceed as if there had been no reference. The judge below, therefore,' was right in refusing tb vacate the judgment under the notice given. This conclusion leaves the parties to the appropriate remedy in a case where there has been a report, and judgment upon it cannot be entered properly.

To the .case as it was presented, by the motion, it was immaterial that the decision had not been made part of the judgment roll. Under section 1019, it was enough that the decision had been filed within sixty days. '

Order affirmed, with ten dollars costs.


text:
    ARTEMAS H. HOLMES, et al., Appellants v. GEORGE S. EVANS, et al., Respondents.

      Attorney at'law, services of, under special agreement.

    Plaintiffs were employed as attorneys at law, by defendants, to litigate certain claims or make settlement of same. The settlement negotiated was not satisfactory to.defendants, whereupon plaintiffs gave to defendants a blank consent for the substitution of other attorneys, and wrote them a letter consenting that defendants should proceed towards the settlement, and added these words: “in the event that yo'u settle these controversies, upon substantially the same terms as you reject, we shall be entitled to the compensation provided in the agreement.” The referee found, and the evidence supported the finding, that the terms of settlement were not substantially the same terms that the defendants had rejected. Held, that the plaintiffs were not entitled to recover the compensation provided for in the agreement.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided March 2, 1891.
    Appeal by plaintiff from judgment entered upon the report of a referee.

      Addison Allen, attorney, and William C. Hornblower of counsel, for appellants.

      John C. Tomlinson, for respondents.
   Per Curiam.

The plaintiffs were employed as attorneys at law, by the defendants, to litigate certain claims or to make a settlement of them. They, the plaintiffs, by negotiation, were able to make a settlement. This, however, was not satisfactory to the defendants. Thereupon the plaintiffs gave to defendants a blank consent to substitute attorneys, and wrote a letter consenting that the defendants should proceed to make a settlement, and adding “ in the event that you settle the controversies, upon substantially the same terms as you reject, we shall be entitled to the compensation provided for in the agreement.”

The plaintiffs, therefore, are not entitled to recover unless the settlement afterwards made contained substantially the same terms as did the settlement which the plaintiffs could have made.

The referee finds that the terms were not substantially the same. This is supported by the terms of the respective settlements.

Judgment affirmed, with costs.


text:
    PETER De LACEY, Appellant v. ALFRED F. WALCOTT, et al., Respondents.

      Examination of defendants in action to enable plaintiff to frame Ms complaint.

    The affidavit upon which the order was based, does not show the materiality or the necessity of the examination for the purpose sought. To enable plaintiff to make appropriate allegations, does not call for new knowledge to be gained from an examination. An ignorance of details and particulars referred to generally, without any specification as to the kind of detail or particularity, does not show that sufficient knowledge or information is not already possessed by plaintiff to enable him to properly frame a complaint without uncalled for particularity or min uteness. It does not appear from the affidavit that the plaintiff is not possessed of ail the information that the examination might furnish. Held, that the vacation of the order was called for because of these defects in the affidavit. That an affidavit, to be sufficient to sustain such an order, must show a want of information as to the subject matter, information of which will enable the party to make allegations that are material to the proper framing of a pleading. There should be such a particularity of statement in regard to the subject matter referred to, that the court may limit the particular matters as to "which a party to an action shall be examined. The papers should disclose sufficient facts to enable the judge,'in his discretion, to direct the course o£ the examination. On the affidavits presented, a judge could not make such a direction and order as the section (§ 873) intends.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal by plaintiff from an order vacating order for examination of defendants to enable plaintiff to frame complaint.

      Hahn & Myers, attorneys, and E. J. Myers of counsel, for appellant.

      Lowrey, Stone & Auerbach, for respondents.
   Per Curiam.

The affidavit on which the order Tor the examination was based, after giving the usual preliminary statement, proceeded to give the facts that would show the nature of the action, and proceeded as follows: The complaint to be framed herein will, after the' discovery sought, state appropriate allegations based upon said facts and demand judgment, etc.” “I do further say I have diligently endeavored to ascertain information and evidence of the details and particulars of the matters hereinbefore set forth, and, as I am informed and believe, my said attorneys have likewise endeavored so to do, but cannot procure or obtain the same either by statements or admissions of the defendant, Alfred F. Walcott, and also by reason of the fact that the books and. records, of the defendant, The Rapid Transit & Bridge Construction Company, are obliged to be kept in the City of Chicago, aforesaid, so that proceedings for an inspection of their records is not available to deponent or his attorneys.

It then appears that the affidavit does not show the materiality or the necessity of the examination for the admitted purpose of the application to frame a complaint. To make appropriate allegations does, not call for new knowledge to be gained from an examination, for they are to be based upon “said facts,” which are known and stated in the affidavit. An ignorance of details and particulars, generally referred to, without specification as to the kind of detail or particularity, does not show that sufficient knowledge or information is not possessed to enable the plaintiff properly to frame a complaint without uncalled-for particularity or minuteness.

Indeed it does not appear that the plaintiff is not possessed of all the information the examination might furnish, although the affidavit avers that he has been unable to obtain the information from certain specified persons; non constat that there have not been other sufficient sources of knowledge. The vacating of the order was called for on these grounds.

An affidavit to be sufficient to maintain such an order, should show a want of information as to subject matters, information of which will enable the party to make allegations that are material to the proper framing of a pleading. The affidavit is ‘so vague and indefinite, as to the matters, that it cannot be perceived from all the averments taken together, that what the plaintiff seeks in the examination will be necessary to the complaint. Therefore it does not appear that, the examination is necessary and material within the meaning of the Code.

There should be such a particularity of statement as to the subject matter referred to (§ 873), that the court may “ designate and limit the particular matters as to which a party- to an action shall be examined.”

This provision is for the benefit of the party to be examined, and the papers should disclose sufficient facts to enable the judge, in his discretion, to direct what course- the examination may take. And the party should ■ have the means of claiming his right in that regard. On the present affidavits a judge could not make such a direction as the section intends.

Order affirmed with ten dollars costs.


text:
    CHARLES H. TRAITTEUR, Respondent v. JAMES LIVINGSTON, Appellant.

      Dismissal of complaint at trial term for non-appearance of the plaintiff— Default set aside by court, within judicial discretion, cannot be reviewed.

    The action was for damages arising from defendant’s alleged negligence. The answer contained a general denial of the averments of the complaint, and set up as a counter-claim damages for alleged negligence of plaintiff in a transaction which appears by the pleadings to be the same transaction referred to in the complaint. To this counter-claim there was no reply. The position claimed by the defendant is, that the record shows that the plaintiff had no right of recovery; that under section 522 of the Code of Civil Procedure, the allegations of the answer must be taken to be true. Held, that it was within the discretion of the court below to refuse to decide this matter upon motion, and to refer it for determination to the ordinary proceedings in the action, and especially in vievv of the possibility that the plaintiff in those proceedings would procure relief against the consequence of his neglect in not replying to the answer. It appeared by the affidavits that the plaintiff’s attorney, in not appearing, acted upon what he supposed was an agreement or arrangement with defendant’s attorneys, that was denied by the latter, but the preponderance of proof as to the arrangement was in favor of plaintiff. The court had a right to consider this fact in opening the default. The court below exercised a judicial discretion in setting aside the default which cannot be reviewed on appeal.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.

      Appeal from an order of the court at special term.

      W. Jackson, attorney, and George W. Stephens of counsel, for appellant.

      George Finck, attorney and of counsel, for respondent.
   Per Curiam.

The dismissal of the complaint was ordered at trial term, the plaintiff not appearing. The court below used a judicial discretion in setting aside the default which cannot be reviewed.

The learned counsel for appellant argues that the record showed that the plaintiff had no right of recovery.

The action was for damages from defendant’s alleged negligence. The answer contained a general denial of the averments of the complaint. It then made a counter-claim for damages from plaintiff’s alleged negligence in a transaction which it will be assumed appears by the pleadings to be the same transaction that the complaint referred to. The counter-claim averred that the plaintiff was negligent. To this counter-claim there was no reply. And the position for defendant is that, by section 522, Code Civil Procedure, for the purposes of the action, the allegations of the answer must be taken as true.

It was within the discretion of the judge to refuse to decide this matter upon motion and to refer it for determination to the ordinary proceedings in an action, and especially in view of the possibility that the plaintiff would procure, if it were proper, relief against the consequences of a want of a reply.

The terms upon which the default was opened, were complained of. It appears by the affidavits that the plaintiff’s attorney, in not appearing, acted upon what he supposed was an arrangement with the other side. The arrangement was denied, but the plaintiff may have believed it was made. As to its existence the preponderance of proof was with the plaintiff. The court had .a right to consider this in settling terms.

Order affirmed, without costs.