author: By the Court.—Sedgwick, J.

text:
    APOLLONIE MUNDORFF, Plaintiff, v. JOSEPH WANGLER, as Executor, &c., of James Moore, Deceased, Defendant.
    I. ADMINISTRATOR’S BONDS.
    1. Action against executor of surely for a breach of the bond, by the omission of the administrator to obey a decree for payment.

      (a) Pbima facie case fob plaintiff, what establishes.
    1.' The decree directing the payment and stating facts sufficient to show that the surrogate was proceeding within Ms jurisdiction, the petition for the decree, and the citation issued thereon, and the bond, having been read in evidence; and it having been proved that the administrator had omitted to perform the decree, that the surrogate’s certificate under the decree had been duly docketed, that execution had been duly issued and returned unsatisfied, and that the surrogate had assigned the bond,
    held,
    that plaintiff had made out a case which required the direction of a verdict in his favor.
    1. Unnecessary proof.—Proof of proceedings anterior to petition (other than the bond) is in such case unnecessary.
    1. Exceptions to unnecessary proof.—Even if good, not cause for reversal.
    (6) Death of the principal in the bond.
    1. Evidence of, as against the surety and his executor, sufficient to establish the jurisdictional fact of death,

    1. The admission of the surety, and the fact that he acted and led others to act as if the death had occurred, is sufficient.
    (c) Bond approved of by surrogate.
    1. Not necessary, to render it obligatory on the surety.
    1. It is required for the benefit of creditors and distributees, who may waive it.
    (d) Demand for payment of decree.
    1. Not necessary.

    (e) Sureties’ death, defaults after.
    1. Sureties are liable for.

    (/) Decree.—Error in amount directed to be paid,
    EFFECT OF.
    1. Will not preclude a recovery for the correct amount.
    H. SURROGATE’S DECREE FOR PAYMENT.
    1. Void or inoperative, not rendered so by.
    1. Error in amount directed to be paid.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    Exceptions ordered to be heard in the first instance at general term, the court having directed a verdict for plaintiff. The facts sufficiently appear in the opinion.

      Hall & McMahon, attorneys, and Elial F. Hall, ■ of counsel, for plaintiff, on the questions considered by the court, argued:
    I. A formal order of approval is not required by the law or the practice; the approval is sufficiently shown by the acceptance of the bond, the filing of it, and the issuing of the letters. If the surrogate did not perform his duty in this particular, the onus was upon the defendant to show it (Mandeville v. Reynolds, 68 N. Y. 534; Dayton v. Johnson, 69 Id. 419). “It would be strange indeed if the sureties in an administration bond, after enabling their principal to possess himself of the personal estate by its execution, should be permitted to avoid its obligation, upon the plea that the officer granting the letters and receiving the bond had no jurisdiction of the subject matter. The execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction in any proceedings for the assets which the appointment and bond have enabled the principal to receive” (People v. Falconer, 2 Sandf. 83, approved in Fake v. Whipple, 39 N. Y. 394).
    II. The objection that there was nothing on the face of the decree for payment, to show that the surrogate had acquired any jurisdiction, was unfounded and false. The recitals in the decree show the application of the plaintiff to the surrogate, the issuing of a citation to the administrator, and his appearance before the surrogate by his attorneys, Cornell, McCullough & McDonald, in obedience to the citation. “ The recitals in a surrogate’s decree, which are full as to all jurisdictional matters, are. prima facie evidence of “its validity when the question arises in a collateral matter” (Rowe v. Parsons, 6 Hun, 338; Dayton v. Johnson, 69 N. Y. 425). “In the absence of fraud or collusion between the executor and the legatee, a decree of the surrogate directing payment to such legatee, is conclusive upon the sureties on the executor’s bond, and cannot be impeached in a collateral proceeding” (Schofield v. Churchill, Court of Appeals, February 19, 1878 ; from 6 N. Y. Weekly Dig. 195).
    III. The proceedings upon the surrogate’s decree, the making and filing of the certificate of the decree, the docketing of the certificate, the issuing of the execution thereon and the return of the same unsatisfied, the petition for assignment of the bond, and the order assigning the bond, were all perfectly regular, and in strict accordance with sections 63, 64 and 65, of chapter 460 of the laws of 1837, as amended by chapter 104 of the laws of 1844 (4 Edmonds' Statutes, 498). To obviate all questions as to the proper county, and following the precedent laid down in Rowe v. Parsons, (6 Hun, 338), a certificate was also filed and docketed in Kings county, and execution issued there. These statutory proceedings were all that was necessary to make the cause of action on the bond complete and perfect. “A demand, previous to the commencement of the suit, of the money directed by the decree to be paid, was not necessary. The statute does not make such a demand a condition precedent to the right to sue the bond of the administratrix” (People v. Rowland, 5 Barb. 453).
    IY. The surety is liable for defaults after his death. There is no analogy between a mercantile guaranty, revocable upon notice, and terminable, as has been held, by the death of the guarantor (except as to liabilities which accrued before his death), such as that in Harris v. Fawcett (15 L. R. Eq. Cas. 311), cited at the trial herein, and an administrator’s bond, in which the sureties, in express terms, “bind ourselves, our, and each of our heirs, executors and administrators.” Furthermore, the suretyship in this case is not terminable upon notice, at the will of the surety, but only upon the exercise of the judicial discretion of the surrogate, and after new sureties have qualified to his satisfaction.
    V. In the hurry of computing the interest at the close of the trial, it was computed for two or three hundred dollars too much. We consent that the error be corrected at the general term and the verdict modified accordingly.
    A. Q. Anderson, attorney, and John 8. Lawrence, of counsel, for defendant, on the questions considered by the court, argued:
    I. The justice erred in allowing the certified copy of the inventory to be introduced in evidence. There is no provision of law authorizing any copy of such a paper to be read in evidence. The original inventory is filed in the office of the surrogate, and was the only evidence of any appraisement that was admissible. The surrogate’s court being a court of limited jurisdiction, its certificates are not entitled to any credit, except when made pursuant to some statutory authority (People v. Barnes, 12 Wend. 492; Stilwell v. Carpenter, 2 Abb. New Cas. 268; Matter of Watson v. Nelson, 69 N. Y. 536).
    II. The bond was improperly received in evidence, and the exception thereto was well taken, (a) No approval is shown, either by any indorsement or writing of the surroga te upon the bond, or by any record, such as an order directing the bond to be taken with the persons named therein as sureties, (b) The approval of a judge or any judicial officer can only be shown in the manner suggested above. Even though the surrogate may have reached such approval in his mind, there should be evidence from which that fact could be determined (Burns v. Robinson, 1 Code R. 62 ; Seaman v. Ward, 1 Hilt. 52; Stephens v. Santee, 51 Barb. 532). (c) There is no presumption that the bond was approved (People v. Barnes, supra), (d) If there could be such presumption, it must be overcome when the bond being produced there is no approval on it. (e) If the surrogate had approved it, he is still alive, and could have been examined and the fact shown, if it was a fact. (/) The sureties had a right .to know if they were accepted. How could they know, if there was no record % (g) There is no order directing the bond to be filed. There is no file mark, nor any other evidence upon the bond that it was ever filed. The only evidence given was, that’it was in a book in the surrogate’s office. The letters do not show that any bond was given at all.
    III. The letters of administration upon the estate of John Mundorff were not properly shown. The original should have been produced, and the copy or record in the surrogate’s office was improperly admitted in evidence.
    IV. All the following papers, which were offered and received in evidence under defendant’s objection, which papers purport to have been issued or used in and about certain proceedings in the surrogate’s court, in the matter of the estate of John Mundorff, were improperly admitted. They are: Exhibit 1, Certified copy of letters of administration; Exhibit 2, Certified copy of inventory, copy letters of administration; Exhibit 9, Certified copy surrogate’s decree; Exhibit 16, Petition of plaintiff for assignment of bond; Exhibit 17, Order assigning bond; Exhibit 19, Petition of plaintiff, as a creditor; Exhibit 20, Citation for administrator to show cause; Exhibit 21, Consent to adjourn the proceedings with order for payment; Exhibit 22, Decree of surrogate of May 31, 1876; Exhibit 12, Execution to sheriff of ¡New York; Exhibit 13, Certificate of clerk of Kings county, of copy decree; Exhibit 14, Transcript of judgment of Kings county ; Exhibit 15, Execution to sheriff of Kings county. Each and all of these papers were objected to by the defendant, and received under his exception. 1. The surrogate had no jurisdiction to issue until a bond had been given and approved. 2. That certified copies could not be put in evidence. 3. The surrogate’s court being a court of limited jurisdiction, jurisdiction must be shown. There was nothing to show jurisdiction. 4. That the surrogate never approved any bond. 5. That they were for a greater amount than appeared to be due. 6. The decree of the surrogate, May 31, 1876, states that the plaintiff is entitled to $7,996.99, and interest on that amount from October 20, 1875, amounting to $340.53, which is $600 too much, besides the interest on said $600; and orders that the administrator pay that amount, viz., $8,337.52, for which excessive amount the transcripts and executions were issued. (a) There is no proof that John Mundorff died, or that any petition was ever presented to the surrogate for the appointment of an administrator. These proceedings were jurisdictional, and as the surrogate’s court is of limited jurisdiction, they should have been shown before the bond, or letters of administration, could be read in evidence.
    Y. So also the papers called the judgment roll, were improperly admitted, as they did not constitute a judgment; and also the reports of Ingraham and Kurtzman were improperly admitted.
    YI. The plaintiff based her right to take proceedings against the administrator upon this so-called judgment, and in her petition to the surrogate, stated that she had recovered a judgment against said administrator for $7,996.99. This amount was $600 in excess of what she was entitled to receive, as shown by the so-called judgment itself, and the decree of the surrogate was made on her claim for the exaggerated amount and interest on that amount. The administrator was not indebted in the amount claimed, and the decree of the surrogate could not bind his sureties, for the reason that it was founded on a demand for more than was actually due. A decree for default in complying with such demand, would not form the basis of a right of action against the surety. His rights are “ sirictissimi juris.”

    VII. It was also necessary for the plaintiff to show, before she could maintain the action, that a demand had been made upon Jacob Mundorff for the payment of the money required by the decree, and an omission of the administrator to comply with the decree (People v. Barnes, 12 Wend. 492 ; Brewster v. Baldi, 9 Jones & Spencer, 63). {a) But even if such demand had been proven in this case, it would not have availed the plaintiff, for the reason that the decree was, confessedly, for more than she was entitled, and a failure to pay that amount would not create such a default as would make the surety liable. (5) The administrator was not bound to pay the amount directed by the decree, for the plaintiff shows that it directed the payment of $600 too much, with interest thereon. (c) “ The sureties can only be made liable for the disobedience of the administrator to lawful orders of the surrogate” (Annett v. Kerr, Opinion of Robertson, Ch. J., 28 How. Pr. 329). (d) No demand is shown to have been made upon Mundorff, the administrator, for the amount of money in which he is how alleged to be in default, although this suit is to recover for his supposed disobedience of a decree of the surrogate to pay that amount. Nor can it be claimed that the sheriff's proceedings upon the execution upon the surrogate’s decree constituted a proper demand, because if there was no valid decree there could be no valid execution, and because demand for satisfaction of an execution for $600 more than was unpaid, as plaintiff himself has proven, besides interest on such erroneous amount, cannot be a demand for some other amount which may be the proper amount.
    VIII. The alleged default by Jacob Mundorff, which is the basis of this action, occurred, if at all, in 1876, six years after the death of James Moore (the defendant’s testator), and upon the death of Moore his liability as surety terminated, and for defaults occurring thereafter his estate, or the defendant as his executor, cannot be made liable, Moore was only a surety—sureties are always favored. The contract is one of beneficence, not of mutual interest. 1. The rule stated by Williams, is that, “If a man enters into a continuing guaranty and dies, his executor, it has been thought, is not liable upon it for advances made after the testator’s death, which operates as a revocation” (3 Williams on Executors, 7 ed. 1869). “The death of the surety is perhaps a revocation of the guaranty” (De Colyer on Guarantees, &c., Amer. ed. 422). The rule is stated by Smith, in speaking of “ Surety, how discharged“ It is said by Mr. Starkie to have been decided that a continuing guaranty is countermandable by parol. And the executor, it seems, is not liable in respect of advances made after the testator’s death, which operates as a revocation” (Smith on Mercantile Law, 286 ; Hande v. Craighead, 67 N. Y. 432). 2. The Revised Statutes, sections 66, 67, 68, 69, provide for a surety’s procuring his release from responsibility for future acts of his principal, by compelling him to give a new surety in his place, or in default thereof procuring a revocation of his letters. 3. The liability of the sureties upon the bond must be considered as though the words of the statute in respect to the obligation, its effect and revocation, were contained in the bond itself. 4. This surety died in 1870,- and of course, could not very well apply to be relieved from his liability, which did not occur until 1875. The defendant claims that death revokes the obligation of a surety on an administration bond. In all cases where liability is terminable by notice, the surety is discharged by death. It cannot be that in respect- to a surety the liability is to be continued, for acts which transpire long after the surety ‘has passed out of existence (Jordan, et at. v. Dobbins, Administrator, 122 Mass. 168; Harris v. Fawcett, 15 Law Rep. Eq. Cas. 311; 8 Affirmed Law Rep. Chan. App. 866). 5. The defendant had no notice of any claim until June 15, 1877.
   By the Court.—Sedgwick, J.

James Moore, the testator of defendants, and another, as sureties, with Jacob Mundorff, as principal, made their joint and several bond, upon condition “ that if the above bounden Jacob Mundorff,” shall faithfully execute the trust reposed in him as administrator, &c., &c., of John Mundorff, late of the city of New York, deceased, and obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to him, then this obligation to be void, &c.

In 1870, the surety, James Moore, died.

In 1876, an order was made by the surrogate, that Jacob Mundorff, the administrator, forthwith pay to the plaintiff in this action the sum of $7,996.99, together with costs, amounting in all to. $8,337.52.

The bond, the original petition of plaintiff, citation, decree or order, were produced upon the trial, from the surrogate’s office.

The recitals in the order stated facts sufficient to show that the surrogate was proceeding within his jurisdiction. It was proved that the. administrator had “omitted” to perforin the decree (§ 23, c. 320, L. 1830), that the surrogate’s certificate under the decree was duly docketed by the clerk of the county, that execution was duly issued and returned unsatisfied, and that the surrogate had assigned the bond given by the administrator (2 Edm. R. 8. §§ 63, 64, 65, p. 498). The plaintiff therefore proved a breach of the condition that the administrator would obey all orders of the surrogate, and a due assignment of the bond. This was enough to sustain the action, and required that the judge should direct a verdict for the plaintiff (Brewster v. Balch, 41 N. Y. Super. Ct. 69 ; Dayton v. Johnson, 69 N. Y. 419).

The plaintiff upon the trial unnecessarily proceeded to establish the validity of the claim made in the petition, by producing records tending to prove that the plaintiff had procured judgment against the administrator, and to re-enforce the presumption of jurisdiction, by giving evidence of the filing of inventory, &c. Many objections were taken on the trial to the proofs here alluded to. It is not profitable to notice them all in detail, inasmuch as if the matters were all out of the case, the court would have been bound to make the direction he did.

It is specially objected, that it did not appear that John Mundorff had died, nor therefore that the surrogate had jurisdiction of the administration of his estate. If there were not a presumption that he had died, it would be sufficient proof by admission of defendant’s testator, that he acted and led others to act as if the death had occurred.

It is further argued that the obligation of the bond is not shown, until it is also proved that the surrogate, as directed by statute, approved it, and there was no such proof. The provision as to approval was not made for the benefit or protection of the administrator or sureties, but of creditors and distributees. If the latter do not require it, but waive their right or omit to object, the former cannot rest upon what is in the nature of an objection to their own acts.

It appeared that the order of the surrogate directed the payment of an amount greater than was really due to the petitioner, and in fact the order followed the judgment that had been obtained against the administrator. The plaintiff did not ask that the decree be enforced as to the error, but asked that a proper deduction be made. Indeed, the plaintiff, recognizing the error, had before trial acquiesced by stipulation, in a proper reduction of the judgment. Strictly, the decree of the surrogate was a final adjudication as to the amount of the judgment. It proceeded upon an allegation of the petition, that a judgment had been obtained, and an adjudication as to the existence. and amount of the judgment was directly involved in the proceeding. But under any circumstances, it would not be proper to consider the decree void or inoperative, for such an error. If all the proceedings were taken together, they furnished a correction of what was an error of computation, and it could be deemed corrected..

It is objected that a demand for the payment of the decree should have been made xipon the administrator. This was not necessary, for an omission by the administrator to perform the decree rendered the surety liable, by the act of 1830 (c. 320, § 23), and by section 65, chapter 460, 'Laws of 1837, the return of the execution unsatisfied gives the creditor a right to an assignment of the bond.

I do not see any ground for the proposition that the surety’s liability upon the bond did not extend to defaults after his death. It was not revocable at his will; the intent of the contract covered defaults after death, not only because of the nature of the subject matter, but because also he expressly bound his executors and administrators.

There shoxxld be a correction of the error of calculation in the amount of the verdict, viz., $200.

The exceptions of defendants are overruled, and judgment for plaintiff on the direction of the court, is ordered, with costs to plaintiff, but such costs are to abide the future direction of the court, at special term, as to the costs of the action.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick,. J.

license: Public Domain

text:
    JOHN P. BRANCH and others, Plaintiffs and Respondents, v. LAZARUS LEVY and SIMON BORG, Defendants and Appellants.
    I. Trial, Conduct of.
    1. JURY, RIGHT TO JUDGE OF CHARACTER OF TRANSACTION.

      (a) Fiction. The perception of a jury may ascertain from the character and make-up of a fiction, what real event the fiction was meant to hide.
    2. CHARGE CURING ERROR IN RECEPTION OF INCOMPETENT TESTIMONY; WHEN NOT.

      {a) Agent, letters by one claimed to be.
    1. An error in reception for the purpose of proving agency of such letters written after the close of the transaction in question will not, in a case where the evidence as to the fact of agency is nearly balanced, be cured by a charge that such letters were not evidence, for the reason that if the writer had in fact been an agent, his power to bind the defendants by his declaration ceased upon his making the agreement.
    1. This, although such letters were properly used on the cross-examination of the alleged agent, to affect his credibility or contradict him.
    H. Appeal.
    1. Error in reception of incompetent evidence not cause for reversal. (a) Buie, that when such error could not possibly have worked injury, there is no cause for reversal, not applicable to the case at bar.

    Before Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    Appeal from judgment entered on verdict for plaintiff and from order denying motion for new trial, made at special term upon the case and exceptions.
    The action was for damages from the breach by de-

      fenclants of a contract alleged to have been made between them, acting by one Harrison, as their agent or broker, and the plaintiffs, for the sale and delivery to the latter of coupons taken from bonds of a railroad company, to the amount of $4,950. The main defense was that Harrison was not defendants’ agent.
    Both Harrison and the defendants resided in New York. The plaintiffs did business in Richmond, Virginia. - The coupons were the property of defendants, and were at the Raleigh National Bank, in Raleigh, North Carolina. In a preliminary correspondence Harrison stated to plaintiffs that he had the coupons, and offered them to plaintiffs. In one letter he wrote, “They are all right, A No. 1 party guarantee. 80 is bid for them here. It is no use to bid less than 87. . . . If you want the coupons, or if you bid 87, I may get them and you will be satisfied.”
    Harrison telegraphed that he would sell the coupons at 87, delivered in New York. The plaintiffs telegraphed-in answer, they would buy the coupons delivered in Richmond. Harrison closed with this, April 19, 1877. On the same day Harrison wrote to plaintiffs that he had received the last telegram and accepted, and continued: “The coupons will be delivered to you, by the First National Bank, Richmond, in a day or two, you paying the amount as agreed. The coupons couldn’t have been had to-morrow, as I had written yesterday- by mail instructing my lawyer to put them in immediate train-for proof, &c. They are all right and you have a good bargain, only the party here didn’t want to be bothered with the form of suit," which was offered to be done promptly and cheaply.”
    On April 21, 1877, the plaintiffs wrote to Harrison. Among other things : “ We understand your seller is both responsible and reliable, and guarantees the .coupons.”

      On April 19, the defendants telegraphed the Raleigh Bank, that had the coupons, to send them to the First National Bank of Richmond, and also wrote to the First National Bank : “We have this day instructed the Raleigh National Bank to ship you §4,950 Coups., which you are to deliver to Messrs. Branch & Co. of your city, upon payment to you at 87 cents on the dollar ..... and remit us draft for proceeds upon this city.”
    The coupons were not at any time sent by the Raleigh Bank, or delivered to the plaintiffs.
    The plaintiffs offered in evidence letters of Harrison that were dated and sent after April 19, in which he declared that in the transaction he had not acted as principal but only as broker. He did not give the name of his alleged principal.
    To the admission of these last letters the defendants objected, on the ground that they formed a personal correspondence between Harrison and plaintiffs, subsequent to the contract, and were, therefore, not binding on defendants. The objection being overruled the defendants excepted.
    On this proof as to agency, the plaintiff rested.
    The defendants in their case examined Harrison as a witness. He testified that he did not act as broker for defendants, but bought the coupons of them at 83 cents, and requested the defendants to deliver them to the plaintiffs in Richmond, and to receive from them the amount agreed to be paid to Harrison. One of the defendants testified to the same effect. Both of the witnesses testified that on May 15, 1877, §150 was paid by defendants to Harrison, in settlement of Harrison’s claim as buyer against them as sellers of the coupons.
    The court, in charging the jury, instructed them to find for the plaintiffs if they were satisfied by the letters of the defendants that Harrison acted as broker, and asking them if these letters were consistent with the transaction between the defendants and Harrison being a sale and purchase of the coupons.
    At the end of the charge the defendants’ counsel requested the judge to instruct the jury to. disregard all of the letters of Mr. Harrison, written to the plaintiffs subsequent to the transactions of April 19, 1877, and the court so charged.
    The jury found a verdict for plaintiff. Judgment thereon has been entered. There was a motion for a new trial made on a case and exceptions, at special term. The motion was denied.

      Burton N. Harrison, attorney, and of counsel, for' appellants, among other things, urged:
    I. The appeal from the order brings the whole case before the general term, which must now examine the case at large and decide it on the law and the merits as shown by the pleadings, the testimony, and the charge ; and if it now appears that an injustice has been done, that the verdict is against the evidence, or is upon insufficient evidence, or is for excessive damages, or is otherwise objectionable, the verdict must be set aside and a, new trial ordered, even though there may have been no exceptions or request to charge which presented the objections to the court on the trial (Luddington v. Miller, 36 Super. Ct. 7; Macy v. Wheeler, 30 N. Y. 237; Lennox v. Hoppock, 1 Sweeny, 469). The whole charge is now open to examination by the general term on the appeal from the special term order; and whether any particular part of the charge was excepted to or not on the trial, the inquiry here is whether it satisfactorily appears that an injustice has been done to the defendant by what now appears to have been a misdirection of the court on the trial (Keyes v. Devlin, 3 E. D. Smith, 523). So far as the court charged the jury that the question was one of fact for them to determine, whether the defendants entered into the bargain, with the plaintiffs, and then failed to comply with it; that the vital question for their consideration was whether the defendants actually entered into the contract through the broker with the plaintiffs; that, if the jury deemed the coupons were sold by defendants to the plaintiffs, they must find for the plaintiffs. Here was a misdirection, which was calculated to mislead the jury, and for which a new trial should be granted (Castanos v. Ritter, 3 Duer, 370). This, under above cases, although there was no exception.
    II. The letters written by Harrison to plaintiffs after the transaction, were not evidence against these defendants, and should never have been admitted when defendants objected to them as they did. And after admitting them in evidence, and allowing counsel to use them before'the jury as the only material he had on which to sum up for the plaintiffs, the judge himself finally conceded that they had no relevancy in the case and directed the jury (but too late) to disregard all of them.

      Grimball & Tunstall, attorneys, and of counsel, for respondents, among other things, urged:
    I. As to the letters written by Harrison prior to, and also subsequent to April 19, 1877, they constituted the res gestee. “These surrounding circumstances, constituting parts of the res gestee, may always be shown to the jury, along with the principal fact” (1 Greenl. Ev. § 108 ; Laning v. N. Y. C. R. R. Co., 49 N. Y. 538 ; Roulston v. Roulston, 64 Id. 654). And the letters of the broker Harrison were made competent for the purpose of cross-examination, to -contradict him and to show he falsified. It is well settled that if in the course of the trial evidence becomes competent, a new trial will not be granted, because admitted prior to that time. Every one of these letters and telegrams had been called for by the defendant’s fourth cross-interrogatory to the witness Branch, who was required by the defendants “to produce and attach to his deposition aU the letters and telegrams” of the broker Harrison. They were, therefore, made evidence by the defendants, even if they were not competent themselves. By the Code (§ 911) objections may be made to testimony taken on commission which might be taken if the witness were personally examined, and those only. Now, if on cross-examination a witness is forced to produce papers by the adverse party, the cross-examiner cannot object to their admission. In the present casé, they were caused to • be attached to,, and thus made a part of, the deposition. They were not only identified but were made evidence. Depositions taken at the instance of, one party may be read on the trial by the other (Weber v. Kingsland, 8 Bosw. 415, 439 ; see Barry v. Galvin, 37 How. 313; Jordan v. Jordan, 3 Supm. Ct. (T. & C.) 269 ; Railway Passengers’ Assurance Co. v. Warner, 1 Id. 21; Commercial Bank v. Bank of State of N. Y., 4 Hill, 519). The cross-examiner could not even withdraw his cross-interrogatory without consent—a fortiori, when he did not desire to do so, must the evidence adduced by it be made evidence for both sides (Union Bank of Sandusky v. Torrey, 5 Duer, 627). Directly in point is Marshal v. Roberts (10 Hun, 463).
   By the Court.—Sedgwick,. J.

I am, inclined to think that there was sufficient testimony to take the case to the jury, on the issue of whether Harrison was defendants’ agent, in making the agreement with plaintiffs. The examining of Harrison and one of the defendants, as to the alleged sale and purchase^ of the coupons between them, would prevent the case being taken from the jury. The jury’s scrutiny of the testimony of these witnesses, and finding that the partióular account given by them was not correct, would lead not only to a discrediting of the witnesses and a rejection of their testimony, but as against the defendants, one of them being examined, to a possible conclusion that there was nothing to be opposed to the claim that Harrison did act as broker. The perception of a jury may ascertain from the character and make-up of a fiction, what real event the fiction was meant to hide.

In other respects, the case was not a strong one for the plaintiffs. There were, if any, but two considerations that threw the balance in plaintiffs’ favor. The first grew out of defendants’ letters to the Raleigh bank, instructing them to send the coupons to the Richmond bank, and instructing the latter to deliver them up to the plaintiffs on payment of an amount at 87 cents on the dollar. Harrison had in a letter to the plaintiffs named the Richmond bank as the place of delivery. The second grew out of Harrison’s receiving §150 from defendants in settlement of what they alleged to be the purchase of the coupons by him of them. Neither of these was conclusive against the defendants. The coupons were in Raleigh. If Harrison had bought them in New York of the defendants and sold them to the plaintiffs to be delivered in Richmond, it was not unusual or improbable that, to avoid a formal delivery to Harrison and by his verbal request, the defendants should deliver to the plaintiffs and write the letters in evidence to accomplish that delivery, agreeing with Harrison to pay him the difference, less expenses.

As to the settlement for $150, though there was some testimony that if Harrison were entitled to the coupons, as buying them from defendants, his damages would have amounted to a greater sum, on the other band, there was no evidence that his brokerage would have been that sum. The amount does not of itself appear to be equivalent to a brokerage. And the suggestion that the settlement was upon the basis of the profits that Harrison would have made by a sale to plaintiff at 87 is not without weight.

Down to Harrison’s letters after April 19, the negotiations and agreement had not clearly disclosed that Harrison was acting for somebody else. The third person referred to by him was, on the face of the letters, a seller to him, and the guarantee referred to was such as had been made by the seller, on the sale to him. At least, such a construction is not entirely inadmissible.

Therefore, when the letters of Harrison, written after the agreement of April 19 was then consummated, were received as competent evidence against the defendants, it must have had some effect upon the jury, that Harrison declared that he was only a broker. In a case so nearly balanced this effect may have been decisive. Although these letters were properly used upon Harrison’s cross-examination, they were then admissible only in respect of Harrison’s credibility, or to contradict him by his own declarations. This does not reach the further use made of them as evidence in themselves against the defendants. And I think it appears that the instruction at the end of the charge that the letters were not evidence, for the reason that if Harrison had, in fact, been an agent, his power to bind the defendants by his declaration ceased upon his making the agreement, may not have led the jury to undo what had been done in their minds, upon the testimony contained in the letters.

For the reason given, I am of opinion there should be a new trial. The other exceptions were not valid, but need not be stated in particular.

The judgment, and the order denying the motion for a new trial made at special term on the case as settled, are reversed, and a new trial ordered, with costs of the appeals to appellant to abide the event of the action. On the appeals from the orders denying motion for new trial, one bill of costs with disbursements, if any, are to be taxed, as there has been but one argument.

Freedman, J., concurred.


text:
    AUGUSTE MENARD and LENA S. MENARD, Plaintiffs and Respondents, v. MARIETTA R. STEVENS, Defendant and Appellant.
    I. Appeal.
    1. EVIDENCE INCOMPETENT, BUT NOT WORKING ANY INJURY.
    (<$) Rule, that its admission is not cause fob bevebsal, Applies
    When the evidence is as to facts which, if not testified to, the jury would Mow, from an experience common to all, must have existed.
    II. Damages.—Contbact, bbeach op.
    1. PRIOR PROFITS, EVIDENCE OF, ADMISSIBLE.

      (a) When by contract between S. and M. it was agreed that M., for a certain specified period should occupy a certain part of a building of S., and carry on therein a certain business in connection with a certain other business carried on by S. in the rest of the house, and that M. should receive all the profits of his business:

      Held,

    In an action by M. against S. for a breach of the contract in ousting him from his part of the building, that evidence of the profits made by him prior to the breach was admissible on the subject of damages.
    1. Subsequent pbopits. The tendency of the evidence to form a basis for an improper allowance of subsequent profits must be guarded against by the charge.
    3. Elements op damage in above put case. The nature and extent of the business done before breach, the contingencies to which that business was subject, the expenses incurred, the profits made, and losses sustained, and the admissions made by M. in regard thereto are all to be considered in determining what the use and occupation of the demised premises in the condition in which they were at the time of the breach, including the furniture in them,-would have been worth to M. for the purposes mentioned in the lease, for the time he was deprived of it by the unlawful acts of S.
    HI. Appeal.
    1. CHARGE, REFUSAL TO.
    (a) A refusal to comply with a request to charge a perfectly correct proposition is not error, if it has no bearing on the issues involved.
    Before Curtis, Ch. J., and Sedgwick, J.

      Decided March 3, 1879.
    Appeal from a judgment.
    In May, 1876, an agreement in writing was made by the parties to this action, by which the plaintiff agreed for the term of three years to take charge of a kitchen and restaurant, in a house owned by the defendant ; in consideration of which the defendant agreed to let the plaintiff occupy and use the kitchen, room for a restaurant and other rooms in the house, with the privilege to the plaintiff to keep for his own profit a first-class restaurant and dining-room, for the tenants of the house ; the plaintiff was to keep the rooms used by him clean and in good order; to feed the employees of the house, to the number of eighteen, and was to supply the tenants of the house with first-class “French cooking, keeping the standard equal to that of all first-class hotels in the city.” The defendant had the right to cancel the agreement by giving thirty days’ notice to the plaintiff upon plaintiff’s neglect or refusal to perform the agreement, “ said neglect or refusal to be decided by arbitration.” The agreement contained “ the parties of the second part will pay no money rent for the rooms above mentioned, but in lieu thereof agree to feed all the employees of Mrs. Stevens, in the house ; the number of said employees hot to exceed eighteen . . . the parties of the second part will pay for any (other?) rooms or apartments required or taken by them for their use and occupation, at a fair valuation.” Mrs. Stevens agrees to lease said premises for a term of three years, if said conditions are complied with. The plaintiffs took possession, furnished certain of the rooms, and began to carry on a restaurant, and continued to carry it on until some time between January 29 and February 7, 1877, when they were forcibly ejected by the defendant.
    The action waS brought to recover damages for a breach of the contract.
    The defendant claimed the restaurant was not kept as the agreement provided. The plaintiff insisted that it was. On the trial conflicting testimony was given. The defendant also claimed that upon the neglect of the plaintiff to keep the restaurant as agreed, she attempted to bring about an arbitration as to the neglect; that plaintiff refused to arbitrate, and that she therefore gave- more than thirty days’ notice that she canceled the agreement for the neglect. The testimony on this point given on behalf of defendant was opposed by testimony on behalf of plaintiff.
    On the trial, upon the subject of damages, the following questions were put, objections made, exceptions taken and answers given :

      “ As soon as I received this (being a note from Mrs. Stevens), I went to Mrs. Stevens, and she told me I have got to settle immediately or take my things out, or she would put them on the sidewalk; then I moved out; I took everything down to Waverly place ; I sold part and got part; the gas fixtures I sold to Mr. Pan-coast.

      “ Q. What did you get for them ?

      “ Objected to as incompetent on the question of damages. Objection overruled and exception taken.
    “A. He gave me thirty per cent, of what I gave for them.
    “ Q. How, in relation to the buffet %

    “ Defendant’s objection and exception covers all testimony on this point.
    “A. I sold that back for $60 ; it cost me $150.
    “ Q. What was that lease worth at the time of this damage %

    “ Objected to as calling for an expression of opinion on the part of the witness, who is not shown to be an expert, and as otherwise incompetent. Objection overruled and exception.
    “A. That lease I deemed it at $15,000, for three years ; $5,000 a year.
    “ Q. What profit did result from taking in $3,000 a month %

    “Objected to as incompetent. Objection overruled and exception taken. •
    “By the Court?—The question is as to your profit ?
    “A. My profit was thirty per cent, at the time I made $3,000 a month; that is the way I based my $15,000; I removed my things to Waverly place ; I am not there now ; Mr. Folmer has now the restaurant where I was before ; my wife came there nearly every day to look out for the linen; I had everything in good order ; she took charge of everything.”
    The judge, on the subject of damages, charged :
    “How, as to the measure of damages, I have to instruct you that you can allow nothing for losses sustained by plaintiffs in the re-sale of any of the property removed by them. That may have been their misfortune, but for that the defendant is not responsible. There was nothing that the defendant did which prevented the plaintiffs from using the property so removed by them elsewhere in similar enterprises. Other items of damage are claimed, bnt you must discard them all except the damage which necessarily flows from the breaking up of plaintiff’s business before the time had arrived at which the defendant had a right to insist upon a discontinuance. The period of time for which plaintiffs may have a right to recover may, as I have already said, consist of only a few days, or it may consist of the whole unexpired term of the lease, according as a matter of fact you may find it. That is a question for you to determine. Whichever way you may determine it, in assessing the damages for that period, you have aright to consider the nature and extent of the business done by plaintiffs while they were there; the many contingencies to which that business was subject; the expenses incurred, the profits made, and the losses sustained; and also the admissions made by the plaintiffs in regard thereto ; and upon all these matters you will have to determine what the use and occupation of the demised premises, in the condition which they then were, including the furniture in them, would have been worth to the plaintiffs for the purposes mentioned in the lease, for the time, be it short or long, they were deprived of it by the unlawful acts of the defendant, if they were so deprived.

      “ Prospective profits cannot be compensated for, they are too uncertain. You will, therefore, have to assess the damages according to the rule laid down by me, and in doing so you may, among other things, consider on one hand the offer made by plaintiffs to sell out to the defendant and also to another at a certain price, which appears in evidence, and on the other hand the circumstances and the necessity under which these offers were made. You may also consider any admission or admissions which you may find plaintiffs, or either of them, made in regard to the profitableness or unprofitableness of the business while it was carried on by them.
    “ And finally you will bear in mind that the right of plaintiffs to any damages, in case a notice of thirty days was given, depends entirely upon the question whether the plaintiffs fulfilled all the conditions of the agreement on their part.
    “By taking a common sense view of all these matters, I have no doubt you will arrive at a proper conclusion. If, however, from the state of the evidence you should find yourselves unable to determine the damages to which plaintiffs' may be entitled, you must give the plaintiffs at least nominal damages.
    “In case you find for the plaintiffs in any sum whatever, you will also have to determine what damage, if any, the defendant sustained by reason of any breach of any of the conditions of the agreement to be performed by the plaintiffs, and then offset it against the amount to which the plaintiffs may be otherwise entitled. And in this connection you will bear in mind that the defendant claims that certain bills for fuel and gas were left unpaid. The plaintiffs on the other hand deny it. Between them you will have to determine how the fact was in that respect.”
    Defendant’s counsel excepted to that portion of the charge wherein the court says that the nature and character of the business which the plaintiffs had conducted may be taken into consideration by the jury, in estimating damages.
    Also to that portion of the charge wherein the' court says that the evidence is either conflicting or not clear, as to the fact of thirty days’ notice having been given.
    Also to that part of the charge wherein the court says that in estimating the damages, it may be for the whole unexpired term, if the plaintiffs complied with every undertaking in the agreement.

      The jury thereupon rendered a verdict for the plaintiffs for the sum of $5,000.
    The defendant’s counsel moved fora new trial upon the minutes, which motion was denied, and exception taken.
    Judgment was thereupon entered on the verdict. ■
    I
    Defendant appeals from the judgment.

      John Berry, attorney, and of counsel, for appellants, on the questions considered by the court, among other things, argued:
    I. The agreement upon which this action is brought was a personal one, calling for the personal services of the plaintiff, of the character therein mentioned, and was not a lease, which could be sold by plaintiff to a third party, with the right to possession or enjoyment under it. It, therefore, had no value, disconnected with the personal services of plaintiff (Jackson v. Delacroix, 2 Wend. 433). The only occupation or use of the premises, under the agreement, was the personal occupation and use by the plaintiff for the sole purpose of properly performing the personal services required of him thereby. The defendant was not obliged to accept the occupation or services of another person, and any sale or other disposition of the plaintiff’s right or interest under the agreement, or substitution of another’s services, would have been a violation of its conditions, authorizing defendant to cancel the same. The learned judge, therefore, erred in his denial to charge the jury to this effect, as requested. It is reasonable to assume that this request to charge, made and denied in the presence and hearing of the jury, induced them to believe that there was to this agreement a salable value disconnected with the services of plaintiffs, such as would naturally attach to an ordinary lease, and this, no doubt, had a material influence upon their verdict, particularly in connection with the charge of the learned judge, upon the question of damages, where he instructs the- jury that in assessing damages they would have to determine “ what the use and occupation of the demised premises would have been worth to the plaintiffs for the purposes mentioned in the lease, for the time the plaintiffs were deprived of it by the unlawful acts of the defendant;” and that the plaintiffs’ right, to recover might consist of the whole unexpired term of the lease.
    II. There was error in the reception of incompetent evidence. The plaintiff was asked: ‘ ‘ What was that lease worth at the time of this damage ?” and under, objection was allowed to answer: 1 ‘.That lease I deemed it at $15,000 for three years; $5,000 a year.” This agreement not being in fa'ct a lease, not having a value as a. lease, for the reasons hereinabove stated, the question was improper upon the subject of damages. Even if the question had been proper, it had not been shown that the witness had a knowledge of the value of a lease of this character, or that he was competent to give an opinion upon the subject. That he was not competent is shown by his cross-examination, where he says that he had never kept a restaurant like this before. Again, the plaintiff was asked: “What profit did result from taking in $3,000 a month?” and under objection he answered: “ My profit was thirty per cent, at the time I made $3,000 a month ; that is. the way I based my $15,000.” This was incompetent for the same reason, and for the further reason that it was evidence only of prospective profits, which is not the measure of damage^, and for which there can be no recovery. Any future profits under this agreement were contingent and uncertain, and could not be estimated. It could not be assumed that these occupants of the house would continue to patronize this restaurant. They were under no obligation to do" so, either to the plaintiff or to the defendant. The destruction of the building by fire or otherwise would have prevented future profits. The death of the plaintiffs would have done so. The increase in the cost of conducting the business might have materially impaired or destroyed the profit. Thus it will be seen that the only evidence upon the question of damages was that of future profits, uncertain and dependent upon innumerable contingencies, for which there can be no recovery (Hamilton v. McPherson, 28 N. Y. 72; Giffin v. Colver, 16 Id. 494). It is true that the learned judge said to the jury that prospective profits could not be compensated for, but there can be no doubt that in the absence of any other evidence on the question of damages, the jury were misled by its admission in connection with the instructions to them above mentioned, that “ they were to determine what the use and occupation of the premises would have been worth during the unexpired term,” and that their verdict was based upon this evidence (Green v. Hudson R. R. R. Co., 32 Barb. 25 ; Worrall v. Parmelee, 1 N. Y. 519).

      John Langtree, attorney, and of counsel, for respondent.
   By the Court.—Sedgwick, J.

There was no motion to dismiss the complaint, on the ground that the testimony did not prove any cause of action, nor was there any request that the judge direct the jury to find for the defendant on the whole case, nor was there any motion for a new trial upon a case. A motion for new trial was madb upon the minutes. It specified no ground, and the order denying it was not appealed from. We are, therefore, confined to an examination of the exceptions taken by the defendant.

The plaintiff, as witness for himself, was asked: “ Tell us, in round numbers, about how much you expended in fitting np and furnishing these apartments V’ The ground of objection was stated, that under the agreement there is nothing requiring the plaintiff to furnish any" particular amount. If the agreement called upon the plaintiff, as it clearly did, to furnish the rooms for a restaurant, he had the right to prove the facts connected with the furnishing, and was not shut off from this proof, because the agreement did not ‘specify any particular sum he should expend. The cost of the articles was some evidence of the fitness of the furniture for the kind of restaurant that the agreement meant. The witness was also allowed to state the money he lost upon a sale of the furniture after the auction. This was objected to as incompetent on the question of damages. It may, perhaps, be that this testimony was not material in the case. It is evin dent, that, under the subsequent charge of the judge, that the jury must not include in the damage this loss, the proof could not have injured the defendant. There are often instances, when incompetent testimony may have the' effect of so prepossessing the minds of jurors, that they will not be able to follow a direction of the judge to disregard it. The sáfe rule, therefore, is that all improper testimony is deemed ‘to do injury until the contrary clearly appears. Here, however, • the answer given stated facts, which, if not testified to, the jury would know, from an experience common to all, must have existed,. when the furniture was sold after it was used.

There was an objection to the witness stating the value of what was called the lease. The ground was. that the witness was not an expert, and the proposed testimony was otherwise incompetent. The answer given was apparently an opinion of the witness, and he had not been proved to be qualified to express an opin-N ion. Another answer was given in immediate connection with the first, and the two, which should be taken together, show that the sum the witness named was the result of a calculation from the profits he had made before the alleged wrong. He said in the last answer : “ My profit was thirty per cent, at the time I made $3,000 a month ; that is the way I based my $15,000.” As to the plaintiff’s right (under the agreement, in substance, that he should have the profits of keeping a restaurant for the tenants of the house) to show what the profits had been before the eviction, there can hardly be a doubt. The damages for breaking up unlawfully a profitable business would be greater than for breaking up a business that had .had no profit. The judge, by the charge, protected the defendant against a verdict for subsequent profits, in a way that she cannot complain of (Bagley v. Smith, 10 N. Y. 489 ; Marquart v. La Farge, 5 Duer, 559). The judge directed the jury explicitly not to give damages for any causes, specifying them, excepting the breaking up of plaintiff’s business. He said,' among things on this point: “ Other items of damage are claimed, but you must discard them all, except the damage which necessarily flows from the breaking up of plaintiff’s business, before the time had arrived at which the defendant had a right to insist upon a discontinuance.”

The court properly excluded the question, “Did you hear any other person making complaint to him (the head waiter) at any time.” The answer would have been hearsay.

At the end of the testimony, the defendant’s counsel moved to dismiss as to the plaintiff Lena S. Menard. This was properly denied. She was jointly interested in the agreement. The counsel also moved for a dismissal of the complaint generally, on the ground that no damages recoverable in this action had been proved. If the proof as to loss of the business and other like proof were disregarded, clearly the plaintiff had shown some damage, if he were unlawfully evicted, as to which no question was addressed to the court on the trial.

There was a request by defendant’s counsel to charge that the agreement was personal between the plaintiffs and defendants, one which called from them personal services^ and was not a lease in any such sense as that it could be sold, or that Mrs. Stevens was obliged to accept anybody who may have been api pointed by Mr. Menard. If this be accurate, in all respects, the defendant was not injured by the court refusing to give to the jury a description which had no practical value in the case,- and referred to matters not in issue before the jury. Whether it was a personal agreement or was a lease that could not have been sold, and whether Mrs. Stevens was obliged to accept some one named by Mr. Menard, did not affect the issue as to the wrong complained of.

The charge, that the jury in estimating the damage should consider the- nature and character of the business which the plaintiffs had conducted, seems, as has been already said, to be correct.

The testimony, as given in the case, justified the court in telling the jury that the evidence as to the fact of thirty days’ notice having been given was either conflicting or not clear.

I do not perceive any reason for not sustaining the charge, that if the plaintiff complied with every undertaking in the agreement, the damages might be for the whole unexpired term. The defendant had the right to cancel the agreement by thirty days’ notice only in case the plaintiff failed in his performance. If he did not fail, and this was left to the jury, his interest was for more than thirty days, and was in the full time the agreement might last.

The judgment appealed from should be affirmed, with costs.

Curtis, Ch. J., concurred.


author: Sedgwick,

text:
    SPECIAL TERM, 1878.
    ABNER MILLS and ABNER P. MILLS v. JAMES M. HICKS and GEORGE BELL.
    INCORPORATION OF COMPANIES FORMED TO NAVIGATE THE OCEAN BY STEAMSHIPS. STATUTE OF 1853 (3 JR. 8. 6 ed. ,718).
    Liability of the stockholdebs fob the debts of an incorfoBATION OF THIS CHABACTEB, WHEN THE WHOLE OF THE CAPITAL STOCK HAS NOT BEEN PAID, AND A CEBTIFICATE FILED AS • PROVIDED IN THE SAID ACT.—STATUTE OF LIMITATIONS.When does it operate upon such a claim.
    The liability of the stockholder, under such circumstances, is incurred the moment the contract of the creditor with the company is consummated (Corning y. McCullough, 1 J7. T. 47 j Aspinwall y. Sacchi, 57 Id. 381).
    In this case, the statute begins to run when the plaintiff has the right to bring his action under the clause of section 8, viz.: “ And no suit shall be brought against any stockholder in such corporation, for any debt so contracted, until an execution shall have been returned unsatisfied in whole or in part.” And in case of the sheriff’s failure to return it (at the end of sixty days), then the return of it as procured by proceedings taken by the creditor within a reasonable time after the failure of the sheriff to return, shall be deemed the time referred to in the statute. The statute begins to run at the lapse of such reasonable time, without the creditor taking any proceedings to compel a return.
    In this case, whether a reasonable time had elapsed is a question of law. No fact.is stated to explain the execution not being returned for two years after it was issued, and no reason can be presumed for it. It must be held that a reasonable time did elapse without proceedings being taken by plaintiff.

      Before Sedgwick, J., at Special Term.

      Decided May 15, 1878.
    This action was commenced February 21, 1876.
    The plaintiffs recovered a judgment against The New York Mail Steamship Company, February 10, 1868, upon a debt that became due in October, 1867, for $2,100.35.
    An execution issued on said judgment, February 11, 1868, which was not returned until March 1, 1870, and then returned unsatisfied.
    During all this time defendants were the owners of '431 shares of the capital stock of said company. The capital stock of- said company was never fully paid in, and a certificate of the same filed, in regard thereto, as required by the statute.
    The complaint, after stating these facts, claimed that defendants were liable to pay said judgment. The answer set up the statute of limitations as a defense.
    Plaintiffs demurred to this answer, and the demurrer was argued at special term.

      Pelton & Poucher, for plaintiffs.

      Henry L. Vilas, attorney for defendants, *James Q. Spencer, of counsel.
   Sedgwick,

As to the defense of the statute,

J. of limitations, I am inclined to think that it is equivalent to a general averment that the supposed cause of action did not accrue within six years before the commencement of the action. Of course, this defense is not demurrable, but I understand that the case is presented as if the plaintiff, making no objection to the answer pleading matters of evidence, submits the question on the demurrer, of whether the facts stated in the answer, and admitted by the complaint and demurrer, show that the action was not brought within six years after the right to bring it accrued. For this purpose a stipulation is handed in, that this action was begun February 21, 1876.

The question is the same as if, upon the trial, the facts admitted appeared in evidence, and no other facts, and the judgment of this court were asked thereon, as to the defense.

My opinion is that the statute begins to run when the plaintiff had the right to bring his action under the clause of section 8, viz.: “and no suit shall be brought against any stockholder in such corporation for any debt so contracted, until an execution shall have been returned unsatisfied, in whole or in part.”

There is no question in this case as to whether the plaintiff might have, under his right to issue an execution, of his own will, at any time within five years after judgment, brought his action upon the return of such execution unsatisfied. The statute requires that he shall have in fact issued the execution.' In this case he did so on February 11, 1868, and it was in fact ■ returned on March 1, 1870.

Now, what point of time was within the view of the statute ? The intent evidently was that the execution should exhaust the company’s property, in the first instance, so far as any possible legal use of the writ could be made by the sheriff. It could not have contemplated that the sheriff would fail in his legal duty to return the writ in sixty days, although it did not ignore the possibility of his not returning it then. And it must have intended that the plaintiff would, in his own interest, in case of the sheriff’s failure to return, have compelled a return; 1st, to definitely ascertain his rights against the property of the corporation ; 2d, as against a stockholder to get the right to begin an action under the statute now considered.

It could not have contemplated that the execution might remain in the hands of the sheriff for a long period of time after the end of sixty days, through. which he would have no right to levy its amount upon property,. while the creditor took no proceeding to secure a return. It supposes that the creditor will, within a reasonable time, proceed to secure the return.

The extrinsic circumstance of an execution returned unsatisfied, is a prerequisite to a right to sue. But it does not follow from that, that the statute meant that the plaintiff might allow an execution, after he had seen fit to issue it, to remain unreturned indefinitely. On such a point, the opinion of Judge Duer is pertinent, in Lyle v. Murray (4 Sandf. 595). He said: “ Even where an agent, from the peculiar .circumstances of his agency, is only bound to pay upon demand, it by no means follows that until a demand no cause of action accrues, so that the statute does not begin to run. It by no means follows that the principal, by omitting to make the necessary demand, may suspend, the statute for an indefinite period. It is the duty, in all cases, of an agent who has collected money for his principal to give immediate notice of the fact, and when the principal has received such notice, he is bound to make the requisite demand within a reasonable time, and if he omits to do so, he puts the statute in motion, arid when he suffers the term which it limits to expire, is concluded by his laches. This exact question was determined by the supreme court in Stafford v. Richardson (15 Wend. 305).”

The application of the statute of limitations is made, in many cases, to depend upon the nature of the relations between the parties (Merritt v. Todd, 23 N. Y. 34 ; Payne v. Gardiner, 29 Id. 146; Wheeler v. Warner, 47 Id. 519).

I am therefore of the opinion that the time referred to in the statute, for the accruing of the action, is the return of the execution at the end of sixty days, or in case of the sheriff’s failure to return it, then the return of it, as procured by prbceedings taken by creditor within a reasonable time after the failure of the sheriff to return. And that the statute begins to run, at the lapse of such reasonable time, without the creditor taking any proceedings to compel a return.

In this case, whether a reasonable time elapsed is a question of law. No fact is stated to explain the execution not being returned for two years after it was issued, and no reasons can be presumed for it. It must be held, that a reasonable time did elapse without proceedings being taken by plaintiff.

Judgment for defendant on demurrer.


author: Freedman, J.

text:
    FREDERICK BUTLER, et al., Plaintiffs, v. ABRAHAM H. FLANDERS, Defendant.
    Commission to take testimony.—Cross-Examination, eight to.
    It appears, upon the face of the commission, that the witness examined under it, on behalf of plaintiff, was, prior to his examination, furnished by plaintiff’s attorney with copies of the interrogatories and cross-interrogatories to be administered to him. No prejudice is shown to have accrued to defendant therefrom, save what maybe inferred from the receipt by the witness of both sets of interrogatories, nor any intention appear, on the part of plaintiff’s counsel, to secure an unfair advantage over defendant.

      Held, that the deposition should stand, and that the fact of the receipt of the interrogatories should only affect the credibility of the witness, and the weight of his testimony. Also, that defendant must have leave to frame and administer further cross-interrogatories, and that if he elect so to do, the commission must be returned at the sole expense of the plaintiffs.
    The necessity and right to cross-examination considered, and the authorities reviewed.
    Before Freedman, J., at Special Term.

      Decided December 2, 1878.

      Motion by defendant to suppress deposition.

      James K. Hill, for the motion.

      J. H Dougherty, in opposition.
   Freedman, J.

It appears, upon the.face of the commission, that the witness examined under it on behalf of the plaintiffs was, prior to his examination, supplied by the. counsel for the plaintiffs with copies of the interrogatories and cross-interrogatories to be administered to him. • Whether they were sent to him directly or indirectly can make no difference, as long as they were actually furnished to him in advance of his examination. That they were so furnished is admitted by plaintiffs’ counsel, in the affidavit submitted by him.

Wo prejudice is shown to have accrued to the defendant therefrom, except such as may be inferred from the bare fact of the receipt, by the witness, of both sets of interrogatories ; and the question is, therefore, whether such fact alone calls for the suppression of the deposition.

• When a witness has been examined in chief, the other party has a right to cross-examine him for the purpose of ascertaining and exhibiting the situation of the witness, with respect to the parties and to the subject of the litigation, his interest, his motives, his inclination, his prejudices, his means of obtaining' a correct and certain knowledge of the facts to which he has borne testimony, the manner in which he has used those means, his powers of discernment, memory and description. Such cross-examination is one of the principal and most efficacious tests which the law has devised for the discovery of truth, ¿nd the right to its free and- full exercise is deemed of such great importance, that if a witness dies after he has been examined in chief, and before his cross-examination, his testimony is inadmissible (Kissam v. Forrest, 25 Wend. 651).

But such test is rendered almost, if not quite, useless if the witness can be posted by the party calling him, in advance, as to the entire range which the cross-examination is to take, and made thoroughly acquainted with the form, nature and purpose of every question intended to be put to him on the cross-examination.

To sanction such a practice would in many cases lead to the grossest abuse. The tribunal which is to pass upon the testimony of the witness is entitled to his independent recollection of the facts to which he may be able to testify, as such recollection may appear from the whole range of his examination; and this implies that the whole examination throughout must be fairly conducted. Each party is entitled, therefore, to freely and fully examine him without undue interference on the part of the other.

The statute authorizing the issuing of commissions to take the testimony of witnesses residing abroad is an innovation on the common law rules of evidence (Jackson v. Hobby, 20 Johns. 361), and hence the principle that its positive requirements must be strictly complied with has always been recognized and acted upon. But even beyond that, whenever undue means are employed to give shape or color to evidence taken upon commissions, says Allen, J., in Commercial Bank of Penn. v. Union Bank of New York (11 N. Y. 203), it will be proper, upon motion, to set aside the deposition and order the commission to be executed anew, or deprive the party thus abusing the process of the court of its benefit, as shall be deemed most fit.

So, where the taking of the deposition was suspended in consequence of the sickness of the witness, and subsequently the witness appeared again with his counsel, and the examination was commenced anew, and the witness read his answers to all the interrogatories, direct and cross, from a paper he brought, which had been prepared by himself and counsel and was in his counsel’s handwriting, the deposition was, on motion,' suppressed (Creamer v. Jackson, 4 Abb. Pr. 413).

Section 910 of the Code of Civil Procedure enumerates the cases in which the deposition may be suppressed, and any unfair or overreaching conduct on the part of the attorney for either party, to the prejudice of the adverse party, in the course of the proceedings, as well as fraud, is made a sufficient ground for the suppression of the deposition. .

Upon the whole case, however, as it appears before me, I may well hesitate to suppress the deposition altogether. Wo special prejudice is shown to have been sustained by the defendant, nor is it apparent from the deposition that he sustained any. I am also satisfied that in transmitting copies of the interrogatories, plaintiff’s counsel had no intention to thereby secure an unfair advantage over the defendant. The deposition, as it is and as far as it goes, may therefore stand for what it is worth, but upon certain conditions only. Under this disposition of the motion, the fact of the receipt by the witness of the interrogatories in advance of his examination, will simply affect the credibility and weight of his testimony. This being so, the defendant must have leave and an opportunity to frame and administer such further cross-interrogatories as he may be advised. In case he elects to avail himself of this privilegé, the commission must be returned for further and final execution, at the sole expense of the plaintiffs.

Let an order be entered accordingly.