author: By the Court.—Monell, J. Freedman, J. (dissenting).

text:
    WILLIAM H. BALDWIN, as Receiver, etc., Plaintiff and Respondent, v. JOHN T. MARTIN, Impleaded, etc., Defendant and Appellant.
    Section 91 of the Code in its limitation as to the commencement of an action for fraud (six years) provides as follows : “ The cause of action not to be deemed, to have accrued, until the discovery by the aggrieved pan'ty of the facts constituting the fraud.

    In actions of this nature before the Code, it was required of a plaintiff to allege and prove the discovery of the fraud, within six years before suit. In other words, the onus was upon him of repelling the presumption, arising from the lapse of time after the commission of the fraud, as appeared in his pleading.
    The complaint in this action alleged a cause of action as having accrued more than six years previously, and the answer avers that the right of action did not accrue within six years.

      Held, that the plaintiff must prove that the discovery of the fraud was within six yea/rs, and therefore the running of the statute was suspended.
    The Code, and the practice under the same, in this respect has not materially changed the former rules of evidence (see opinion of Fbbbdmajst, J., dissenting).
    Before Monell, Freedman, and Curtis, JJ.

      Decided November 2, 1872.

    Cross-appeals from judgment at Special Term.
    This action is brought by the plaintiff as receiver of the defendants, Arnold Woodward and Fletcher Woodward, for the benefit of David Barker, a judgment creditor of said Woodwards, to set aside an assignment of property executed by them to the defendant Martin, September 5th, 1853, on the ground of fraud, and to have certain assets which came into the hands of said assignee through such assignment applied upon the judgment in which the plaintiff was appointed receiver. The complaint alleges: The recovery of a judgment "by Richard S. Crook and David Barker, in the Supreme Court, for $1,110.04, June 21st, 1854, against said Arnold Woodward and Fletcher Woodward—said judgment was docketed in the county where said defendants resided, and an execution against their property issued to that county, and returned nulla bona, August 21st, 1854. That said judgment was recovered on a cause of action which had existed before the execution of said assignment, and belonged to said Crook and Barker as copartners in trade. That supplementary proceedings had been regularly instituted upon said judgment against said Arnold Woodward, and the plaintiff had been therein regularly appointed receiver by order of a justice of the Supreme Court, and had filed the required bond; that no part of said judgment had been paid ; that said Arnold Woodward was insolvent at the commencement of this action, and had been so a long time prior thereto.
    The alleged principal ground relied on to avoid the assignment is that, at the time of the execution of the assignment, it was agreed, in consideration thereof, that the assignee would immediately thereafter deliver to Arnold Woodward all the money on hand, and that $1,800 was so delivered in pursuance of the agreement.
    The complaint further alleged that this agreement and payment were first discovered by Crook & Barker within six years before the commencement of the action.
    It is also alleged that at the date of the assignment Fletcher Woodward was an infant. The fact was proved that he would have been of age October 26, 1853.
    The relief asked is that the assignment be adjudged void, and that the defendant, Martin, account for and pay the same sum of $1,800 and interest on plaintiff’s debt and for general relief.
    Arnold and Fletcher Woodward were not served, and died before the trial.
    The answer of Martin is in substance : Denial of all the alleged frauds and fraudulent intents, and the alleged secret agreement and payment to Woodward of the $1,800, as to which it is alleged that it never came to his possession, or under his control, "but was retained by Woodward. That he had executed the trusts of said assignment till stayed by injunction at suit of creditors of the assignors ; that those suits resulted in judgments setting aside the assignment, and in them he had fully accounted and paid over all the remaining assets to a receiver, and been discharged, and had no assets in his hands. That if he is liable to account for any of the moneys mentioned in the complaint, the judgment creditors in the former suit, and not the plaintiff, are entitled to it.
    The answer also set up the statute of limitations, and denied the discovery by Crook & Barker within six years.
    The action was. tried by the court without a jury.
    The findings of fact and conclusions of law are as follows:
    BINDINGS OB BACT.
    1st. That on or about June 21st, 1854, Richard S. Crook and David Barker, as plaintiffs, recovered a judgment in the Supreme Court in and for the city and county of New York, against the above-named Arnold Woodward and Fletcher Woodward, as defendants, for the sum of one thousand one hundred and ten dollars and four cents damages and costs. That the judgment roll was filed and the judgment docketed on the same ¡ day in the office of the clerk of the said city and county of New York; on the 22d day of June, 1854, a transcript of said judgment was tiled and docketed, in the office of the clerk of the county of Onondaga.
    2d. That said judgment was recovered upon a cause of action which had accrued and existed before.the 5th day of September, 1858.

      3d. That on the 22d day of June, 1854, an execution on said judgment, against the property of said Arnold Woodward and Fletcher Woodward, was issued in due form to the sheriff of the county of Onondaga, where said Arnold Woodward and Fletcher Woodward then resided, and was by him duly returned August 21st, 1854, to the clerk of the city and county of New York, wholly unsatisfied.
    4th. That on the 15th day of February, 1866, in proceedings supplementary to execution regularly instituted against the said Arnold Woodward upon the said judgment before a justice of the said Supreme Court and properly continued, the plaintiff William H. Baldwin was at the said city, and by an order of Justice D. P. Ingraham, of said court, duly and regularly appointed receiver of all the property, debts, equitable interests, rights and things in action which belonged to said Arnold Woodward, individually, and to,him jointly with said Fletcher Woodward; said order was filed and recorded according to law, the plaintiff gave and filed the bond required by said order, and entered upon the execution of his said trust.
    5th. That no part of said judgment has been paid, and the said Arnold Woodward was insolvent at the time of the commencement of this action, and had been so a long time prior thereto, and died insolvent, pending this action, and that said Fletcher Woodward died in August, 1862, insolvent.
    6th. That on the 5th day of September, 1853, said Arnold Woodward and Fletcher Woodward, who were then, and had been prior thereto, engaged as partners in the dry-goods business in the city of New York and elsewhere, were largely indebted to various persons and pressed by them for payment, executed and delivered to the defendant John T. Martin, under their hands and seals, a general assignment, purporting to assign and transfer to him, for the benefit of their creditors with preferences, all their then joint and individual property and effects, of every name and kind and wherever situated, except such as was exempt from execution by the laws of the State of New York, a copy of which is annexed to the complaint. Schedule A therein referred to was never annexed thereto.
    7th. That the defendant, John T. Martin, thereupon accepted the said assignment, and took possession of said assigned property thereunder, or so much thereof as came to his knowledge.
    8th. That said assignment was made by said Arnold Woodward and Fletcher Woodward, with the intent to hinder, delay, and defraud their joint and individual creditors, among whom were the said Richard S. Crook and David Barker, of their lawful suits, damages, forfeitures, debts and demands.
    9th. That said defendant, John T. Martin, was privy to said fraudulent intent, and consented thereto, and immediately after the execution and delivery to him of the said assignment, delivered over to said Arnold Woodward the sum of eighteen hundred and seventeen T1<y°ij dollars of the said assigned assets, under an agreement previously made by and between these defendants, that on condition that said Arnold Woodward and Fletcher Woodward would execute the said assignment to the defendant John T. Martin, preferring him therein to a large amount, he would so deliver over to them the sum of money aforesaid, and upon this condition they did so execute the said assignment without the knowledge or consent of their creditors.
    10th. That the defendant, John T. Martin, has not accounted in any action or otherwise to any of the creditors of said Arnold Woodward and Fletcher Woodward, or either of them, for the said eighteen hundred and seventeen TVV dollars, or any part thereof, nor paid any portion thereof to a receiver, for or on account of any such creditors, nor has he applied or credited any portion thereof upon his own debt against said Arnold Woodward and Fletcher Woodward, or either of them.
    11th. That of the said assets so assigned and transferred, the defendant, John T. Martin, has retained in his hands a large sum of money in order to apply the same, as he claims, in payment of the balance of the debt due him as a preferred creditor under said assignment by said Arnold Woodward and Fletcher Woodward, at the date of said assignment, above the proceeds of the collateral security held by him therefor.
    12th. That the said judgment in favor of Richard S. Crook and David Barker belonged to them jointly; and said Crook, in 1854, assigned and transferred all his interest therein to said David Barker, who first discovered the facts which constituted the fraud in the execution of said assignment, within six years prior to the commencement of this action.
    13th. That it is not shown or proven that plaintiff's cause of action accrued more than six years prior to the commencement of this action.
    14th. That in an action commenced on or about the 28th day of December, 1858, by one Robert Taylor, plaintiff, as against the said Arnold Woodward and Fletcher Woodward, John T. Martin and others, defendants, in the Supreme Court in and for the City and County of New York, the said plaintiff, Robert Taylor, as assignee of one Wright, a judgment creditor of said Arnold Woodward and Fletcher Woodward, recovered a judgment against the said defendants, whereby the said assignment of September 5th, 1853, was set aside, annulled, and declared and held to be void and fraudulent as against the plaintiff in said action, a creditor of said assignors ; and the said John T. Martin was decreed and ordered to render an account of his receipts and disbursements under said assignment, and a referee was appointed, before whom said John T. Martin was required to present and pass his account, and he did present and pass an account, and upon the report of the referee therein, a final judgment in said action was rendered, determining the amount for which said John T. Martin, upon the said accounting, was chargeable in said action, as assignee, under said assignment, and ordering the payment thereof to a receiver in said action, appointed by the said Supreme Court therein, and the said sum was by the said John T. Martin paid to said receiver, and said final judgment also decreed the distribution of the said amount by the receiver, after paying certain costs and charges to the said Robert Taylor, and to certain other judgment creditors of said assignors who had before such final judgment obtained judgment in like actions instituted in said court, setting aside as fraudulent against them the said assignment, and had been decreed to have successively, after said Robert Taylor, liens on the said amount for payment of their said judgment, namely, Samuel Graydon and others, William Grieves and Lewis B. Loder ; that the said amount was not sufficient to pay and satisfy in full the said judgment of said Lewis B. Loder, and a part thereof still remains unpaid, all of said other judgments having been paid in full, that final judgment had been entered in said actions brought by Taylor and by others, including said Loder’s action, and the receiver appointed therein as aforesaid had been discharged before the commencement of this action ; that said Lewis B. Loder has taken no proceedings whatever since the 30th day of January, 1861, to reach and apply to the payment of his judgment any of the assets sought to be obtained in this action.
    15th. That on said accounting mentioned in above 14th finding, had in said action, brought by said Taylor, as mentioned in said 14th finding, said defendant, Martin, was not charged with, nor did he account for, either the eighteen hundred and seventeen dollars . ($1,817.19), mentioned in above 9th finding, or for the assets and money retained by him, as mentioned in above 11th finding.
    16th. That said Loder, in the 14th finding, mentioned at the time of said accounting in said 14th finding mentioned, of the payment to him mentioned in said 14th finding, and of the discharge of the assignee and receiver in said 14th finding mentioned, had knowledge and notice of the delivery by the said assignee to the as- ■ signor of said sum of eighteen hundred and seventeen dollars ($1,817.19) mentioned in said 9th finding, and of the circumstances which led to and which were attendant on said delivery.
    AND AS CONCLUSIONS OR LAW.
    1st. I find, that the plaintiff was vested with the individual property of Arnold Woodward, and the joint property of said Arnold Woodward and Fletcher Woodward at the time of the commencement of this action, and entitled to bring the same, as receiver, for the benefit of Richard S. Crook and David Barker, and to be paid the amount of the said judgment, principal and interest, together with the costs of the said supplementary proceedings.
    2d. That the aforesaid assignment is fraudulent and void as against the plaintiff herein, and he is entitled to a judgment declaring the same void as against him and setting it aside as to him.
    3d. That the defendant, John T. Martin, is chargeable with the eighteen hundred and seventeen ($1,817.19) dollars mentioned in the foregoing findings of fact, and interest thereon from the date of the said assignment, and also chargeable with such assets and proceeds of the assets as he "has retained for the balance of his own debt, and which he had not actually appropriated to the payment thereof before the service of the summons on him in this action.

      4th. That the said defendant, Martin, is not chargeable with such assets and proceeds of assets retained by him for his own debt, which he had actually appropriated to the payment thereof before the service on him of the summons in this action.
    5th. That the plaintiff is entitled, as against the defendant herein, to have the said eighteen hundred and seventeen ($1,817.19) dollars and interest thereon as aforesaid, and such assets and proceeds of assets as the defendant, John T. Martin, retained for the balance of his own debt, but did not actually appropriate to the payment thereof before the service of the summons herein on him, applied upon and toward the satisfaction of the judgment mentioned in the 1st finding of fact, with the interest thereon, and the costs of the said supplementary proceeding mentioned in the 4th finding of fact.
    5£. That plaintiff is entitled to recover his costs and disbursements of this action, and an extra allowance under section 309 of the Code of Procedure, to be paid with interest thereon, from the date of the judgment to be entered herein, out of the aforesaid sum of eighteen hundred and seventeen yW ($1,817.19) dollars and the interest thereon, and out of the other money, assets and proceeds of assets, which shall be transferred and paid by defendant, Martin, to the receiver, to be appointed by the judgment herein, if the same shall be sufficient to pay the aforesaid sum of two thousand four hundred and ninety-five ($2,495.72) dollars with interest from date of the judgment to be entered herein, and said costs, disbursements and allowances, with interest thereon from the date of the judgment, to be entered herein in full; if, however, the sum of eighteen hundred and seventeen y1^ ($1,817.19) dollars and the interest thereon, and the other money assets and proceeds of assets to be transferred and paid to said receiver, shall be insufficient to pay said sum of two thousand four hundred and ninety-five T1I^r ($2,495.73) dollars with interest from the date of the judgment to be entered herein, and said costs, disbursements, and allowances with interest, from the date of said judgment, then plaintiff is entitled to have such deficiency (if the amount of it does not exceed the amount of said costs, disbursements and allowances, with interest thereon from the date of said judgment) paid, personally, by defendant, Martin, and to have a personal judgment therefor against defendant, Martin ; but if the amount of said deficiency does not exceed the amount of said costs, disbursements and allowances, with interest thereon from the date of said judgment, then the plaintiff is entitled to have so much of such deficiency as equals the amount of said costs, disbursements and allowances, with interest thereon from the date of said judgment, paid personally by defendant, Martin, and to have a personal judgment therefor against defendant Martin.
    6th. That plaintiff is not entitled to have such of the assets and proceeds of assets retained by defendant, Martin, for his own debt, which he, before the service on him of the summons, in this action, had actually appropriated to the payment of his own debt applied upon and towards the judgment mentioned in the 1st finding of facts or of the interest thereon or of the costs of the supplementary proceedings mentioned in the 4th finding of fact, or of the costs and -disbursements of this action.
    7th. That a reference should be ordered, and a referee appointed to inquire and report whether any prior receivership has been appointed over the assigned estate which now remains in force, and if so, whether such receivership was ordered through fraud or collusion, and whether such prior receiver was appointed by fraud or collusion, or is an improper person, and also whether any other actions, similar to this, are pending, notice to "be given "by such referee to the plaintiffs in such pending similar actions of the proceedings "before him.
    8th. That a reference should be ordered, and a referee appointed to take such proof as either party may offer, as to the actual appropriation, by said Martin, to the payment of his own debt of the assets and proceeds of assets retained by him, and the time and times of such actual appropriations, and to take and pass the accou'nts of said Martin, assignee, as between him and the plaintiff herein.
    9th. That said Martin do pass his account, as such assignee as aforesaid, before a referee to be appointed as above 8th directed.
    10th. That on such accounting as above Sthly and 9tbly directed, said assignee be charged with said eighteen hundred and seventeen ($1,817.19) dollars mentioned in the 9th finding of fact, with interest thereon, from the date of the said assignment, and with such assets and proceeds of assets as said assignee retained for his own debt, but had not actually appropriated to its payment before service of summons in this action on him, and with all other assets and proceeds of assets actually in his hands at the time of the commencement of this action, and be credited with such expenses, allowances, and payments with which he is legally entitled to be credited, and for which he has not heretofore been credited, but said Martin shall not on such accounting be charged with such of the assets and proceeds of assets retained by him for his own debt, which he, before the service on him of the summons in this action, had actually appropriated to the payment thereof.
    11th. That a receiver be appointed, and that the assignee (defendant Martin), after the confirmation of the referee’s report, taking and stating his account, transfer, and pay over to the receiver, under the direction of the referee, such sums as by said report shall be found due the estate, and such assets as by said report shall be found in his hands, or so much thereof as shall be sufficient to pay the plaintiff’s claim and the costs and expenses of this action.
    13th. That the distribution of the assets and proceeds of assets, transferred and paid to the receiver, be subject to the further order of this court, if the receiver be appointed by this court, or of the court by which he shall have been appointed.
    13th. That if the assets and proceeds of assets, which shall come to the receiver’s hands, upon a proper application thereof, to the judgment mentioned in the 1st finding of fact and the interest thereon, the costs of the supplementary proceedings mentioned in the 4th finding of fact, and the interest thereon, and the costs, disbursements and extra allowances of the action and the interest thereon, shall be insufficient to pay the same in full, then the plaintiff is entitled to a personal judgment against the defendant Martin for the amount of such deficiency, if it is not in excess of the costs, disbursements and extra' allowances of this action, and the interest thereon, if it is in excess thereof, so much of such deficiency as shall equal such costs, disbursements and extra allowances, and the interest thereon.
    14th. Rufus F. Andrews is appointed referee, for the purpose of the references directed by these findings.
    15th. James M. Sweeny is appointed receiver, unless there is now existing in full force a prior receiver, in which case, such prior receiver (unless he was appointed by fraud, or collusion, or is an improper person) is appointed receiver for the purposes of this action.
    16th. Either party to be at liberty to apply to this court for further directions on the foot of the judgment.
    S. JONES, Judge.

    Dated November 13, 1871. . .

      The plaintiff excepted to the 11th finding of fact, and the 3d and 4th conclusions of law.
    The defendant excepted to the 6th, 7th, 9th, 12th, 13th, and 15th finding of fact, and all the conclusions of law, except the 4th and 6th ; also to various refusals to find.
    Judgment was entered in conformity with the decision, and both parties appealed. Plaintiff s appeal is from so much of the judgment as adjudges that said defendant Martin is not chargeable with such assets and proceeds of assets retained by him for his own debt which he had actually appropriated to the payment thereof, before the service on him of the summons in this action, and that the plaintiff is not entitled to have such assets and proceeds of assets applied upon or toward the judgment mentioned in the first finding of fact, or the interest thereon, or of the costs of the supplementary proceedings mentioned in the 4th finding of fact, or of the costs and disbursements of this action, and that the defendant Martin shall not be chargeable with such assets in the accounting ordered in said judgment.
    The defendant appealed from every part of the order or judgment entered herein on the 22d day of 11 ovember, 1871, except those parts thereof whereby it is ordered and adjudged that the said defendant is not chargeable with such assets and proceeds of assets retained by him for his own debt, as he had actually appropriated to the payment thereof, before the service on him of the summons in this action, and that the plaintiff is not entitled to have said assets or proceeds of assets applied upon the judgment mentioned in the first finding of fact or the interest thereon, or of the costs of supplementary proceedings mentioned in the 4th finding of fact, or of the costs and disbursements of this action, and that the said defendant shall not be chargeable therewith in the accounting, if any shall be had in pursuance of said order or judgment.

      William G. Choate, for appellant.

      D. S. Riddle, for respondent.
   By the Court.—Monell, J.

The assignment, which has been found to have been fraudulent and void as to creditors, was made in September, 1853, and this action was commenced about fourteen years thereafter. One of the defences is, that the right of action did not accrue within six years next preceding the commencement of the action, and the question arising thereupon, as to which party the onus is upon of removing the statute bar, depends upon the construction of the sixth subdivision of section 91 of the Code, which is as follows :

. . . “the cause of action not to be deemed to have accrued until the discovery by the aggrieved, party of the facts constituting the fraud.” The rule which, previous to the adoption of the Revised Statutes, prevailed in equity, that a party was not to be affected by lapse of time, unless he had discovered the fraud, was substantially enacted in the 51st section, which provided that bills for relief on that ground should be filed within six years after the discovery of the facts constituting the fraud (2 R. 8. 301, § 51).

Under the rule as it had previously prevailed, as well as under the statute after its passage, it was necessary to allege in the bill such facts as were required to repel the presumption arising from the lapse of time; and where the fraud was committed more than six years before suit brought, it was necessary to allege and prove that the discovery of it was within six years (Miller’s Heirs v. McIntyre, 61 Pet. 6; Moore v. Greene, 19 How. 69; Bertine v. Varian, 1 Edw. Ch. R. 343).

In the application of this rule, there was no difference "between courts of equity and of law, where the remedies were concurrent; the former courts adopting the statute as to the time of limitation, but fixing the period where it should be deemed to commence to run, upon principles applicable solely to courts of equity.

It is not doubted that under the Revised Statutes in actions of this nature, it was required of a plaintiff to allege and prove the discovery of the fraud within six years before suit. In other words, the onus was upon him of repelling the presumption arising from the lapse of time; and it only remains to be seen whether any provisions of the Code have changed the rule, and thereupon shifted the burthen of proof.

One of the essential changes effected by the Code was in assimilating the forms of pleading to the rules which had previously prevailed in courts of equity. Hence it is required that pleadings shall contain a statement of facts constituting the cause of action or defence. All fiction and mere form allowed in common law actions, was disallowed by the Code, and a single system adopted, applicable to all pleading. But it was not, as I think, intended to effect any change in actions or defences, except in the mode of stating them; nor any change in the rules or nature of evidence.

Since, as well as before the Code, the complaint may be upon the original demand (Esselstyn v. Weeks, 12 N. Y. R. 635); and under both systems the statute bar must be specially pleaded (Young v. Rummell, 2 Hill, 478 ; Code, § 74), in one case the rules of pleading requiring it, and in the other the rule is made a part of the statute law. After pleading the statute bar, the plaintiff can give evidence in avoidance, it seems, without specially replying the new matter (Esselstyn v. Weeks, sup.).

In pleading the statute, it is sufficient to allege in the answer, that the cause of action did not accrue within the prescribed limit, when, ordinarily, the plaintiff must show an avoidance. But it is said that this applies only to cases where it appears, "by the complaint, that the statute has attached, and not to a case where the statute "begins to run, not from the time the fraud was committed, "but from the time of its discovery. One answer to this, is, that the fraud is the cause of action, and the action relates to the time the fraud was committed. The non-discovery suspends the running of-the statute, and avoids or repels the presumption, which arises from the lapse of time, and revives or restores the original cause of action, which otherwise would be barred by the statute. So that a fraud, committed more than six years before suit, would, actually and not merely presumptively, be barred, unless a suspension of the statute time was shown. Another answer is, that the Code has changed so much of the previous rule of equity pleading as required the plaintiff, by his bill, to allege matters in avoidance, where the statute bar had presumptively attached. As has been seen, the section of the Revised Statute, and of the Code, are essentially similar, and the former was prepared, as the reporters say (Reporter’s Note, § 51, 5 Edm. Ed. Gen. Stati. 437), “adopting the principle and language of the case in 20 I. R. 585, in the Court of Errors.” If, therefore, we were to follow the rule of equity pleading, it would be incumbent upon a plaintiff'to repel the presumption arising from the lapse of time, by averring that the discovery of the fraud was within six years before suit. But I think the legislature, in uniting the equity and common-law systems, intended to make applicable the same rules, whether the action was of an equitable or legal nature, and thus make a uniform system. Hence, the rule, which at law required the statute of limitations to be specially pleaded, was enacted in the Code, and made applicable equally and alike to both kinds of relief, and changed the rule of equity pleading, by allowing the complaint to be upon the original demand, and requiring the statute bar to be specially set up as a defence.

This adaptation or blending of the rules of law and equity, relates only to the manner of forming the issues, and does not affect the rules of evidence as they had previously existed; and it is therefore conceded, that where the complaint shows the cause of action accrued more than the prescribed number of years before suit, and the statute bar is pleaded, the plaintiff must show matter in avoidance ; but it is claimed that where such fact does not appear by the complaint, the rule is otherwise.

It nowhere appears that the legislature designed to distinguish an action for fraud, from any other action: or that it was intended to except such actions from rules applicable to all other actions. Hence, matter to show a suspension of the time, which otherwise would raise a bar, need not be averred in the complaint; but, as in other actions, must be specially pleaded, and then leaving, as I think,'the burthen of proof precisely where, they are left in all other cases (Sands v. St. John, 23 How. Pr. R. 140; Clinton v. Eddy, 37 Id. 23). As in the case of an absent debtor, the cause of action accrues at the maturity of the debt, but the statute is suspended during the absence; and to a plea of the statute, it lies with the plaintiff to show the absence. So in case of a fraud, the action accrues when the fraud was committed, but the statute is suspended until discovery, and it must follow that the plaintiff holds the affirmation of showing the matter on which the suspension rests.

Even if the cause of action accrued upon the discovery of the fraud, and not upon its perpetration, no allegation in respect to time would be necessary in the complaint; and even if it appeared to have been discovered more than six years previously, the complaint would not be demurrable. Judge Grover says, in Gates v. Andrews (37 N. Y. R. 657), that the provision is to prevent the running of the statute until discovery, and is not to be deemed as creating a cause of action from that time.” The cause of action in the case at bar was a fraud .committed more than thirteen years before suit. jSTo other or different cause is alleged in the complaint. The Code declares that civil actions can only be commenced within the prescribed periods (for fraud within six years from its discovery), but the time of the discovery need not be stated, and the statute bar, if it exists, must be set up by the answer. The cause of action is perfect, notwithstanding more than six years have passed since the fraud was committed ; and if the statute is not set up as a defence, the action will prevail. Therefore, as Judge Grover says (Gates v. Andrews, sup.), the statute has merely provided “for a class of cases where the right of action was perfect, but became barred by the statute before the discovery of the facts upon which such right depended.”

It cannot, it seems to me, make any difference whether the complaint shows the cause of action outlawed or otherwise. In either case the objection must be taken by answer.

Take the ordinary case of a cause of action appearing by the complaint to be barred by the statute. The defendant cannot demur, but must set up the statute by answer. The burthen, then, rests upon the plaintiff to show matter which arrested the running of the statute. This is conceded. But wherein does it differ from the case at bar ?

The complaint alleges a cause of action as having accrued more than six years previously; and the dedefendant by answer avers that the right of action did not accrue to the plaintiff within six years. Must not the plaintiff, then, show that the discovery of the fraud was within six years, and, therefore, that the running of the statute was suspended % In analogy to previous rules in equity, it appears to me, it is so ; for it will be seen that the 6th sub. of § 91 limits the relief to the class of actions which were solely cognizable in the Court of Chancery (Fort v. Farrington, 41 N. Y. R. 164), from which it may be fairly inferred, that the legislature did not intend to essentially change the burthen of proof as it existed in that court, nor do anything more than to require the objection to be taken by answer, and have left the previous rules of evidence undisturbed. I am of opinion, therefore, that it was incumbent upon the plaintiff to show that six years had not elapsed since he discovered the facts constituting the fraud, and having failed to do so, the judgment is erroneous. To cast the burthen on the other side, would be to require the defendant to prove knowledge in the plaintiff, a duty which is, in most cases, impossible of performance ; while placing the burthen on the plaintiff" is putting it where the proof can easily be fnrnished, and is more consistent with the reason of the rule, which, as I think, puts it there.

The case of Errickson v. Quinn, 3 Lansing, 399, accords fully with the views I entertain and have here expressed.

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

Freedman, J. (dissenting).

The appellants having consented, on the argument, to turn their respective appeals into motions for a new trial, under section 368 of the Code, for the reason that the judgment is interlocutory merely, and the General Term having thereupon entertained the said motions, I have arrived, after a most critical examination of the questions of fact and of law, at the conclusion that the motions should be denied and the judgment affirmed upon the grounds assigned by the learned judge below. His findings of fact are fully supported by the evidence, the conclusions of law at which he arrived justified by the facts, and his exposition of the law applicable to the peculiar features of this case is well defined.

I will add, that on the argument I felt strongly inclined to differ with him upon the question relating to the burden of proof under the statute of limitations. It then appeared to me highly improbable that the Code, which assimilated legal and equitable remedies and abolished the forms of former actions, had worked a change upon that point. But, upon investigation, I have satisfied myself that the rule laid down and applied to this case is the correct and proper one, and as such should be followed in preference to the rule to the contrary laid down by the Supreme Court in Errickson v. Quinn, 3 Lansing Rep. 299. The action is one which, before the Code, was solely cognizable by a Court of Chancery. There was no remedy at law for such a fraud. By the Revised Statutes, by which the first attempt was made to regulate limitations in equity by express enactments, it was provided that bills for relief, on the ground of fraud, shall be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that time (3 Rev. St. 301, § 51); and this statute was held to give six years aftér the discovery of the fraud, on a bill filed, in cases where there was a concurrent remedy at law. But the Code has changed the rule and limited the action for relief, on the ground of fraud, in such cases, to that class of actions which were solely cognizable by a Court of Chancery (Foot v. Farrington, 41 N. Y. 170).

The language of the sixth subdivision of section 91 of the Code is as follows :

“ An action for relief on the ground of fraud, in cases ‘1 which heretofore were solely cognizable by the Court of Chancery; the cause of action in such cases not to • be deemed to have accrued, until the discovery by the, aggrieved party of the facts constituting the fraud.”

As pointed out by Grover, J., in Gates v. Andrews, 37 N. Y. 658, the provision is, not that the cause shall accrue upon such discovery, hut, to prevent the running of the statute, it shall not he deemed to have accrued before such discovery, thereby providing for a class of cases where the right of action is perfect, but might become barred by the statute, before the discovery of tlie facts.

The case at bar belongs to this class. The defendant insists that plaintiff5 s cause of action accrued more than six years before the commencement of the action, and consequently is barred. To make this defence available, he set it up as a distinct and separate defence in the answer. This he had to do in order to be in a position to claim the benefit of the statute, for section 74 of the Code expressly provides that the objection, that the action was not commenced within the time limited, can only be taken by answer, and an omission to plead the statute, and going to trial without doing so, notwithstanding the claim is clearly barred on its face, has repeatedly been held to preclude the defendant from invoking the statute. In such case the defendant was held to have made his election to stand upon the other defences actually pleaded.

How in order to give full effect to the statutory requirement, that the objection can be taken by answer only, and to maintain the principle of the numerous decisions made under it, that a defendant who has not thus pleaded cannot invoke the aid of the statute in any manner, although the claim is barred on its face, it seems to me to be necessary to hold, that under the sixth subdivision of section 91, as it now stands, plaintiffs cause of action is not to be deemed to have accrued more than six years prior to the commencement of the action, unless it is made to appear by way of defence, that the discovery of the facts constituting the fraud occurred more than six years before suit brought. In other words, the cause is not to be deemed outlawed in the absence of evidence fixing the time of the discovery.

The legislature probably intended, as suggested below, that he who commits a fraud, against which equity alone can give relief, and who necessarily strives to conceal it, shall not be permitted to escape the consequences of his acts through a plea of the statute of limitations, unless he is able to establish that plea by evidence adduced on his behalf. ' But whether such was or was not the true reason which led to the legislative enactment, is not very important. The bare suggestion of the proposition is of sufficient importance to authorize the construction above referred to, in the absence of statutory provisions calling for a different rule.

If I am correct in these views, it follows that the court below had no right to determine, without proof, the particular time from which the running of the statute is to be computed, and as the defendant had wholly failed to give evidence in support of his plea, and the plaintiff on the other hand had given some evidence, which, although insufficient to establish the precise time of the discovery, yet tended to show that it was within six years, it was properly held that the action is not barred.

The motions for a new trial should be denied, and the judgment affirmed with costs.


source: Caselaw Access Project

author: By the Court.—Curtis, J.

license: Public Domain

text:
    WILLIAM B. NEWBERY, et al., Plaintiffs and Appellants, v. CHARLES WALL, et al., Defendants and Respondents.
    Where merchandise is sold to arrive, which the vendor has not on hand, and which neither party can inspect, it would be contrary to sound morality and public policy to enforce the doctrine of “ caveat envptor,” and compel the purchaser to pay for goods of an unmerchantable quality.
    The first principle of the civil law, 11 caveat venditor,” should be applied in such cases. ,

      In such a case, there is an implied engagement in the contract itself, that the article sold should be merchantable (Clue v. McPherson, 1 Bos. 489; Reed v. Randall, 29 N. Y. 358; Peck t>. Armstrong, 38 Barb. 215).
    Before Freedman and Curtis, JJ.,

      Decided November 2, 1872.
    Appeal from judgment, and also from order denying a motion for a new trial.
    The plaintiffs sue as vendors of 1,000 bales of Dowrah jute to defendants on the 25th of May, 1870, shipped at London for New York per ship “American Congress.” The plaintiffs employed Mr. Sturges, a jute broker, to effect a sale of it previous to its arrival. They stated to him that they had received advices from their friends in London, of having shipped 1,000 bales of good Dowrah jute, and wished him to go out in the market and see what he could do with it, and the best price he could get for it, and let them know. Sturges offered it to the defendants, who said that if it was “good Dow-rah jute, good quality,” they would take it at 5f cents gold per pound. Sturges reported the offer to the plaintiffs, who accepted it, and then notified the defendants of the acceptance, stating it was good Dowrah jute. Sturges then signed and delivered to the plaintiffs the following broker’s note.
    Daniel L. Sturq-es, "i
    Hemp Broker, 111 Wall Street, J-New York, May 25,1870. )
    Sold for Messrs. Newbery & Son, to Messrs. Wm. Wall’s Sons, 1,000 bales Dowrah jute, shipped at London for New York, per ship “American Congress,” in good order and free from damage, at 5f cents per pound gold, cash payable in fifteen days from delivery alongside ship, purchasers to advance gold for duties. Brokerage per cent.
    Daniel L. Sturges, Broker.

    :ír. S. Int. Rev. Stamp,;
    ; 5 cents cancelled. :

      Sturges thereafter told the defendants that he had made a contract, and that by the terms it was good Dowrah jute, and that plaintiffs had accepted defendants’ offer of 5f cents. He also sent a copy of the broker’s note by his young man to the defendants, but there was no evidence that it was ever delivered to them or that they ever received it.
    The jute arrived, part July 20th, and the balance August 2d, 1870. The defendants had' arranged with Driggs & Co., warehousemen, to store it. At defendants’ request, plaintiffs entered the goods in bond. Plaintiffs also took out custom-house permits, and sent defendants an order for the jute when the permits were out. When the jute was being landed on the dock, Mr. Truslow, one of the defendants, told the ware-housemen that he had seen it, and did not think it was what they had bought at all, and he thought the defendants would reject it, and it should not be stored on their account. The warehousemen replied that the goods were entered in bond, and that if their carts did not cart them, the government. carts would, at a vastly increased expense.
    The goods were stored by direction of the defendant Truslow, and the warehousemen, upon being informed that plaintiffs were the importers, erased the defendants’ name, and inserted in their place in their receiving books the plaintiffs’ name. After the goods or any part of them were landed, no instructions were given by the defendants to have them carted.
    On the 2d of August, 1870, the plaintiffs sent the defendants their bill for the jute, claiming the amount as due August 16th!
    In the meantime the jute was examined, and on the 16th of August, when plaintiffs sent to collect their bill, the defendants notified them by letter that owing to its inferior and unmerchantable quality, they declined tó receive it. The defendants directed the warehousemen

      to send plaintiffs the storage receipt for the jute. This was done August 22d, some days subsequent to plaintiffs’ directing it, and returned by plaintiffs the same day.
    At the trial no testimony was introduced by the defendants. It was shown that the jute was not of good quality, was not merchantable, and was almost entirely worthless. 1
    The court dismissed the complaint.

      Mr. Henry Whittaker, for appellants.

      Mr. Richard H. Huntley, for respondents.
   By the Court.—Curtis, J.

The defendants did not sign the memorandum of sale made by the broker, nor was he their agent to sign in their behalf a contract containing such provisions. Ho copy of it appears to have been delivered to the defendants when plaintiffs’ broker offered the jute to the defendants ; they said they would take it, if it was “good Bowrah jute, good quality,” and when he verbally notified them of the acceptance by plaintiffs of their offer and of the contract, he said that by its terms it was good Bowrah jute. This condition is omitted from the terms of the contract. Although this contract is executory, and no part of the consideration paid, and the statute requires that it should be signed by both parties or their agents to be binding upon either, yet the defendants might so far ratify and adopt the acts of the broker, as to become bound. Where there is no employment of a person, his acts may be adopted, relating back to the original transaction, the same as if authority had been given ' before.

In a case like the present, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title, or make the vendee liable, for the price, and this acceptance must be voluntary and unconditional (Caulkins v. Hellman, 47 N. Y. R. 452). The evidence fails to show any such voluntary and unconditional acceptance as ratifies and adopts the contract, or the authority of the broker to make it. As soon as the jute was landed, the defendants raised objections to its quality, as not being that called for in the verbal contract, and refused to have it stored on their account. It was subsequently examined, and the defendants, on the 16th of August, 1870, notified the plaintiffs by letter, that owing to its inferior and unmerchantable quality, they declined to receive it. There does not appear to have been that voluntary and unconditional acceptance, or such retention or conduct on the part of the defendants, as is required to supply the place of a written contract.

There is another difficulty with the plaintiffs’ case, and that is whether the broker’s note of itself, and without any extrinsic testimony, does not imply a representation and condition that the jute should be merchantable.

Where goods are sold to arrive which the vendor has not in hand, and which neither party has' an opportunity of inspecting, upon a contract thus purely executory, it would be contrary to sound morality and public policy to enforce the doctrine of caveat emptor, and compel the purchaser to pay for goods of an unmerchantable quality.

The just principle of the civil law in such cases, caveat venditor, should be applied.

In an action to recover upon a broker’s note similar to this (Clue v. McPherson, 1 Bos. 489), the court held, that there was an implied engagement in the contract itself that the article should be merchantable. The learned judge, in his opinion, after reviewing the cases tending to establish the principle, concedes that it is a departure from the common law, and made necessary "by its superior morality, and cites the treatise of Mr. Yerplanck, as illustrating this doctrine with great learning and ability. In Reed v. Randall, 29 N. Y. 358, and in Peck v. Armstrong, 38 Barb. 215, this same rule is applied to the vendor in executory contracts.

It appears to me that in the present case, the plaintiffs failing to show that the article was merchantable, and the defendants refusing to accept it, that there was no error on the part of the judge who dismissed the complaint.

There does not appear to have been any question of fact, arising on the trial, that should have been submitted to the jury. The exceptions to the rulings of the court on the admission of testimony are not tenable.

The judgment and order appealed from should be affirmed with costs.


author: By the Court.—Monell, J.

text:
    GILBERT S. VAN PELT, Plaintiff and Appellant, v. THE UNITED STATES METALLIC SPRING BARBED SHOE-HEEL COMPANY and others, Defendants and Respondents.
    I. Superior Court, Jurisdiction of, in Equity.
    1. Has in an action pending therein full and complete jurisdiction over all equitable remedies and relief which can now be enforced or obtained in an action in the Supreme Court, or formerly by a bill in Chancery.

      If The only limitation on this jurisdiction is, that the action must either be for a cause of action specified in § 133 of the Code, the subject of which cause of action, dr some part thereof, is situated in the city of New York; or be for a cause of action specified in § 134, which has arisen in said city; or be for a cause of action mentioned in subdivision 3 of § 33, or he one the defendants to which either reside, or are personally served with summons, in the city of New York.

    3. A dissolution of a corporation, sequestration of its property, and the appointment of a receiver, under § 36, article 3, title 4, chapter 8, part 3, R. 8., can be obtained and enforced by action.

      II. Corporation.—Dissolution, Sequestration, etc.
    1. A civil action will lie for.

    2. In a civil action, commenced in the Superior Oourt, against a corporation organized and incorporated under the laws of the State of New York, and which was alleged to have had, at the time the cause of action arose, an office and place of business in the city of New York, to procure a dissolution of the corporation, a sequestration of its effects, etc., under the above Section of the R. S.
    Held, on demurrer, by the corporation, to the complaint, that the Superior Oourt had full and complete jurisdiction over the subject of the action, and could grant the relief prayed for.

    Kattenstroth v. Astor Bank, 2 Dues',- 632; Brahe v. Pythagoras Association, 4 Duer, 668, so far as they conflict with the above propositions, are overruled.
    Before Barbour, Ok. J., Monell and Freedman, JJ.

      Decided, November 30, 1872.
    Appeal from a judgment for defendant on demurrer to the complaint.
    The action was to dissolve the defendants’ corporation.
    The complaint alleges that the defendant was a corporation duly organized under the general incorporating act of this State, and transacted its business in the city of New York.
    That the plaintiff had recovered a judgment against such corporation, upon which an execution had been returned unsatisfied, and that such corporation was insolvent.
    The relief demanded was a dissolution by the judgement of the court, of the defendants’ corporation, etc.
    The defendant demurred to the complaint, stating, as ground of demurrer, that this court has no jurisdiction of the subject of the action.
    The demurrer was' sustained at Special Term, and the plaintiff appealed.

      Samuel Stevens, attorney, and of counsel for appellant.

      Edwin Kempton, attorney, and of counsel for respondent.
   By the Court.—Monell, J.

Previous to the abolition of the Court of Chancery, by the adoption of the constitution of 1846, that court had exclusive jurisdiction to entertain bills for the dissolution of corporations.

Neither the Supreme Court, nor any other common-law court, had poAver to entertain such a proceeding (2 R. S. 463, § 36).

The judiciary act of 1847 (Laws, 1847, ch. 280, p. 319, § 16) transferred to, and vested in, the Supreme Court all the equity jurisdiction and poAver Avhich had theretofore been possessed by the Court of Chancery, Avhich included, of course, its jurisdiction to dissolve corporations. By such transfer, the jurisdiction over such cases became exclusive in the Supreme Court, as it had theretofore been exclusive in the Court of Chancery; and such exclusive jurisdiction has continued in the Supreme Court to the present time, unless the legislature has, since the passage of the judiciary act, conferred a like jurisdiction upon other courts.

The Superior Court of the City of NeAv York Avas created by the legislature in 1828, with a common-laAV jurisdiction only. It possessed no equity powers or jurisdiction whatever.

The constitution of 1846 (Art. 14, § 12) continued the court with its then powers and jurisdiction, until the legislature should otherwise direct.

By the passage of the Code of Procedure in the year succeeding the passage of the judiciary act, the equity jurisdiction, which by that act was vested exclusively in the Supreme Court, was bestowed in part upon the Superior Court, the Court of Common Pleas, and Mayors’ and Recorders’ Courts of cities, and to the extent that each of those courts was given a general equity jurisdiction (Bowen v. Irish Presby. Cong., 6 Bosw. 246; Bennett v. LeRoy, 5 Abb. 55; Forrest v. Forrest, 6 Duer, 102, aff"d 25 N. Y. R. 501).

The judiciary article of the constitution which was adopted in 1870, continued the Superior Court, with all its then powers and jurisdiction, and such other powers and j urisdiction as might thereafter be conferred upon it by the legislature.

Under that provision of the constitution, the Superior Court was removed from the interference of the legislat ure, except to increase or add to its jurisdiction and powers. None which it possessed at the adoption of the article can now be taken away or diminished.

The 33d section of the Code of Procedure does not, in terms, confer upon this court a general equity jurisdiction. It gives it such jurisdiction, in certain specified cases, which theretofore were of exclusively equitable cognizance, such as actions for the partition of lands, and the foreclosure of mortgages, and then, generally, “to all other actions ” where the defendants reside, or were served within the city of New York.

Thus it would seem that it must have been the intention of the legislature to make the jurisdiction of the Superior Court, as respects the cause of action, equal and co-extensive with the jurisdiction of the Supreme Court, the only apparent qualification being in the jurisdiction over the person of the defendant. So that, if the defendant resides, or can be served with process, within the city of New York, the Superior Court may claim jurisdiction over any or every action of which any other court has cognizance, whether the cause of action be of an equitable or legal nature.

In speaking on this subject, in a case where the equity jurisdiction of the Superior Court was attacked (Forrest Forrest, 25 N. Y. Rep. 501), Mr. Justice Weight has given the history of legislation upon the subject of a somewhat analogous jurisdiction. He has shown that the legislature has complete power over the subject of divorces, and could give jurisdiction over them to any tribunal; and that, although it saw proper to confine the jurisdiction to the Court of Chancery, while that court was in existence, it was never deprived of the right to extend such jurisdiction to any other existing court, or to have created a court expressly for the purpose of such cases, similar to the ecclesiastical courts of England. The learned judge concluded, therefore, that it was competent for the legislature to vest such jurisdiction in the Superior Court; and that an action for divorce was embraced among the “other actions” to which the jurisdiction of that court was extended by the 33d section of the Code.

The theory of the decision in the Forrest case is, that by the Code, the distinction between actions at law and suits in equity being abolished, and one form of action provided, which is denominated a civil action, the only question which can, in any case, arise, is whether the proceeding is an “ action,” within the meaning of that word as used in the Code. If it is an action, then clearly the Superior Court is vested, by the 33d section, with jurisdiction over it.

In the case before us, the question might be regarded as sufficiently answered by a mere reference to the plaintiff’s proceeding to obtain the relief he seeks. There is a summons in the usual form, and a complaint, stating a cause of action within the provision of the Revised Statutes relating to proceedings against corporations in equity, and a demand for the appropriate relief. It has, therefore, all the characteristics and elements of an action, in the form prescribed by the Code.

The proceeding for the sequestration of the property of an insolvent corporation, was required by the statute to be instituted by “petition’’’ to the chancellor, with a further provision for a final decree. The form of the proceeding, therefore, as well as the peculiar jurisdiction over the subject-matter, was fixed and created by the legislature ; and, being the mere creature of the statute, could be changed, modified, or enlarged by the power creating it. Although the “ second ” part of the Code, until otherwise provided, is not to affect proceedings against corporations, as provided in the title of the Revised Statutes before referred to (Code, § 471), yet, when in consequence of such proceedings, a civil action shall be brought, such action shall be conducted in conformity to such part.

The plaintiff has, therefore, brought an action in the . manner and form prescribed by the second part of the Code.

It cannot be supposed, I think, that the legislature intended to do more or otherwise than merely to preserve certain peculiar remedies which had been provided by statute. Thus leaving the remedies intact, but requiring that in pursuing them, if it was necessary to bring an action, to conform the action to the new Code of Procedure. Among the remedies thus qualifiedly excepted from the operation of the second part of the Code, is the remedy a creditor of an insolvent corporation has against the corporation, to sequestrate its property, and annul its corporate powers.

It is only by statute that an inquisitorial power is given to any court over corporate bodies.

The Court of Chancery had no jurisdiction over such bodies, until it was given by the legislature (Atty.-Gen. v. Utica Ins. Co., 2 J. Ch. R. 371; Varplanck v. Mer. Ins. Co., 1 Edw. 811). Hence, as was said in the Forrest case, it was and is competent for the legislature to give the jurisdiction over such bodies to any court or courts, and to prescribe the form of procedure to secure the remedies given by the statute.

The word “ petition” only is used in the 36th section, but the chancellor gives to it its broad signification, namely, a prayer to the court, saying, that every bill was a petition for relief. He therefore, in two cases, sustained a bill (Judson v. Rossie, Galena Co., 9 Paige, 598 ; Morgan v. N. Y. & Albany R. R. .Co., 10 Id. 290).

If, therefore, the remedy provided by the statute, could have been enforced by bill in equity, before the Code', then it is clear that it can be now pursued by action; and that the latter is an entirely appropriate form of procedure.

I have not found it necessary to look to the third subdivision of the 33d section of the Code, to find a conferred jurisdiction in this court. That subdivision embraces, in terms, actions against corporations for the recovery of any debt or damages; and also “ upon any cause of action ” arising within the State, which would seem to be sufficiently comprehensive to include a creditor’s remedy under the provisions of the Revised Statutes.

But as I have not found it necessary to rely upon that subdivision, for the requisite jurisdiction in this court, over the subject of this action, and having found sufficient in the “> second” subdivision, as explained by the Forrest case, to sustain the action in this court, I am not embarrassed by the two decisions in this court adverse to the views I have expressed (Kattenstroth v. Astor Bank, 2 Duer, 632; Brahe v. The Pythagoras Ass., 4 Id. 658.)

Those decisions, which were before the decision of the Forrest case, were put upon the ground that the third subdivision did not reach to inquisitorial actions or proceedings against corporations under the Revised Statutes. The court did not examine the second subdivision, but confined itself to a construction of the third subdivision only.

I am, therefore, of the opinion that the case before us is an action within the meaning of the Code, and as such this court has jurisdiction over it.

The order sustaining the demurrer should be reversed with costs, with leave to defendant to withdraw the demurrer and answer on payment of costs.


author: By the Court.—Freedman, J.

text:
    THOMAS HAMILTON, Plaintiff and Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Defendant and Appellant.
    I. Carriers of Passengers.—Horse-car Railroads. —Exemplary
    Damages. \
    1. Bight of passenger to be carried to his destination on payment of one fare.

      a. One who, having paid to the conductor of one car the proper fare to his destination, upon that car stopping short of his destination, gets off and enters another car, he is entitled to ride in that other car without payment of further fare, unless he has neglected to comply with a rule of the company requiring him to provide himself with a transfer ticket, and deliver it to the conductor of the second car.
    2. Ejection of passenger by conductor.

    1. Liability of company therefor.

      a. When the company instructs its conductors to put off their cars, with as little force as may be necessary, those passengers who neither pay their fare nor produce a transfer ticket, it becomes liable for the act of one of its conductors in putting off a passenger who, not being bound either to pay fare or produce to him a transfer ticket, refuses to do either.
    1. In such case the act is done in the line of the conductor’s duty; and the company is liable for it as well when it is done through errm' of judgment or mistake of facts, as when it is done in a negligent or reckless manner.
    2. Damages recoverable against the company.
    1. Compensatory, which includes damages for pain and suffering of both body and mind down to the time of the trial, and also for such future suffering as the evidence renders reasonably certain must necessarily result from the injury.
    2. Exemplary, in addition to the compensatory, damages.
    II. Verdict, setting aside, as being against the weight of the evidence.—New Trial.
    1. Triad. Steps necessary to be taken on, in order to enable the unsuccessful party to urge, as ground for a new trial, that the verdict was against the weight of evidence. a. He must move the court to direct a verdict in his favor, on the ground that the evidence was not such as to justify the jury in finding against him, or if he be defendant, he may, at the close of the evidence, move for a dismissal of the complaint, on the ground that the evidence is not sufficient to carry the case to the jury, or to warrant a verdict against him.
    III. Relief, amendment of pbayeb fob.—On Tbial.
    1. Increasing on the trial the amount of damages prayed for, is matter of discretion with the trial judges.
    2. Review of the discretion. Its exercise will not be reviewed when no harm has resulted therefrom.
    IV. Chabge, ebbob in, what is not.—Tbial.
    1. Referring to and commenting on decided cases in support and elucidation of'a proposition of law afterwards charged (the amount of the recoveries therein not being stated), does not constitute error.*
    2. Remark of judge to counsel in presence of jury, that his charge was favorable to him, is not error.
    1. Mode in which atone such comment and remarle can, if it has produced injury, he taken advantage of. Only when assigned on motion for a new trial as a specific ground for the granting of a new trial, for the reason that the jury may possibly have been influenced thereby. .
    V. Reinstettcting Juey. Refusal to.—Tbial.
    1. Where the jury has already received instructions covering a certain point, the judge is not bound on their request, made after their retirement, to reinstruct them upon it.
    2. Nor is he bound, after the jury has retired, to give any further instructions at the request of either party.
    Before Freedman and Curtis, JJ.

      Decided November 30, 1872.
    Appeal from judgment and order denying a motion for a new trial.
    The action was brought to recover damages claimed to have been sustained by plaintiff, in consequence of being put off one of the defendant’s cars for an alleged non-payment of fare.

      * Note by Repobtebs.—It might perhaps have been error for the judge to have stated the amount of the recoveries had in these cases.

      Upon the trial plaintiff testified that a few minutes after 12 o’clock, on the 20th day of June, 1868, he took passage at Ninetieth Street and Third Avenue on defendant’s car No. 75, on its downward passage, and paid the usual fare of seven cents; that, upon reaching the depot at Sixty-fifth Street, the car turned and went into the depot, and its conductor told the passengers to “change cars; ” that plaintiff, with the other passengers, left car No. 75; that defendant’s car No. 2 was waiting to receive them; that being told by the conductor of car No. 2 that, if he came off car No. 75, he was all right and would not need a transfer ticket, he went in and seated himself in car No. 2 ; that car No. 2 thereupon proceeded. on its trip towards the City Hall, and at about Fifty-ninth Street its cond actor asked plaintiff for his fare; that plaintiff declined to pay again ; that thereupon the car was stopped and the conductor fetched plaintiff to the front platform to put him off ; that plaintiff there took hold of a handrail by the window to resist the attempt tó push him off; that the conductor pinched plaintiff’s hand and pulled it open, and then succeeded in forcing plaintiff off; that the plaintiff thereupon took the next car, and, upon payment thereon of six cents fare, was carried to his destination.
    The defendant produced three or four witnesses, who testified that car No. 75 did not run so as to connect with car No. 2 ; that car No. 75 was a “through car,” and on the day specified by plaintiff did not run into the depot, but continued its through trips, and that for this reason the occurrence, as stated by the plaintiff, could not have happened.
    The learned judge then charged the jury, among other things, as follows:
    “In the first place, gentlemen of the jury, you are to take into consideration,—and I wish you to leave it as a separate question for consideration,—whether the charge stated in the pleadings is made, out by the testimony in the case.
    “ It is charged here, in the pleadings, that upon a certain occasion the plaintiff paid his fare above Sixty-fifth Street upon this railroad, to go through to his destina- ' tion. It is admitted by the answer that seven cents, which he paid, was all that was required to be paid for the fare from any point above Sixty-fifth Street to any point below Sixty-fifth Street. You will therefore have no trouble about that question. The next question for you to decide is, whether these facts occurred as alleged in the complaint, that the plaintiff actually paid his fare, and was afterward put off the car, as claimed in his complaint, and as claimed by his testimony.
    “ The testimony here is contradictory.
    “ This is one of those cases peculiarly within the province of a jury to weigh, estimate, and decide. It is not my business, as a court, to direct you in the premises, or to even give you an intimation, perhaps, beyond reflection upon the character of the testimony as it appears in the case. The plaintiff has been upon the stand. You have heard him testify. He has given a clear statement in regard to dates, and the time of this occurrence. He distinctly states that it occurred on the 20th day of June ; that he paid his fare in the regular way ; that it was received ; that it was his intention to go to a point below Sixty-fifth Street; and that he paid his fare in accordance therewith, seven cents. From that time, gentlemen, there is no doubt that the character of passenger came upon him, and that these parties, the defendants, were in the position of common carriers, compelled by the law to do all that was necessary to insure his safety to the place where he should leave the car. They were bound to treat him as such.
    “He states, also, that when he came to Sixty-fifth Street, the car he was upon turned into the depot; that the conductor called out, “Change cars;” that he heard that said by the conductor; that the passengers left and went into another car that was very near it; that he spoke to a man who afterwards acted as conductor upon that car, and asked him if he required a check to go on that car, and he was answered that he did not; that he went on board that car, and that somewhere in the neighborhood of Fifty-ninth Street, or below there, it matters not exactly, after he had gone in and taken his seat in this car No. 2, he was requested by the conductor to pay his fare ; he refused; thereupon the conductor put him off the car. There was a scuffle. It does not appear that there was any undue violence, or any serious damage to the plaintiff from the scuffle which ensued; but the plaintiff tells us that he was put off the car, and left there, and took another car, and paid six cents .for going on to the place of his destination, and there he left the matter.
    “These are the facts testified substantially by the plaintiff.
    “Now, on the other side, comes the testimony of the officers of this road, and you have heard them testimony. In the first place, the superintendent and the receiver have come and showed you, by means of a description of the manner in which that road is carried on, how the cars ran, that on that day car No. 75 was a through car from Harlem to the City Hall; that car No. 2 was a car running from Sixty-fifth Street to the City Hall; that these two cars in nowise connected according to the time.
    “Now, although their testimony is not positive, from their own personal knowledge, like the testimony of the plaintiff in this case—for they testify that they do not know that they even saw those cars on that day—yet it is a kind of testimony entitled to consideration on your part as affecting the facts in the case.
    1 ‘ Then there comes upon the stand the conductor of car No. 75, who testifies to you positively that he was on that car on that day ; that he came through from Harlem here on regular trips ; that there was no stopping ; that there was no going into the depot at Sixty fifth Street on that day ; and that it did not connect with car Ho. 2. He testifies as positively on that subject, as far as car Ho. 75 is concerned, as the plaintiff testifies to the facts that he speaks of.
    “ Then comes before you the conductor of car Ho. 2, and positively states that he was on that car on that day ; and that it did not connect with car Ho. 75. He states that he ran trips from the depot in Sixty-fifth Street to the City Hall on that day, and that no such occurrence took place upon that car as is stated by the plaintiff.
    “ The driver testifies substantially to the same facts, that he was on that car; and he testifies from the memory, as positively as the plaintiff in this case, that such an occurrence could not take place as a man being put off behind him with a box of tools without his knowing it.
    1 ‘ This is the testimony before you that you will have to consider and decide upon, in regard to the commission of the offence and the wrong charged in these pleadings. You have got to weigh this testimony. It is contradictory, I admit; but it is the peculiar province of every jury to take into consideration, and to reconcile if possible, or at least to decide, if they can agree upon the testimony. It often happens that juries do not agree when there is such a state of contradiction. I only advert to one or two rules in reference to contradictory evidence, that a jury has a right to consider always in such cases. You have a right to consider the appearance of the persons upon the stand when they testified, whether they appeared to be telling the truth ; whether their statements were full, with regard to the whole matter; whether they covered the whole case ; and you have a right to consider the circumstances and facts about the matter as to the probability of its occurring under the circumstances. It is always proper for the jury to consider these points in weighing contradictory testimony, to arrive at the truth. It is not always, gentlemen, that the greatest number of witnesses establishes a certain fact. It may be a less number of witnesses, and the jury will establish a fact against the testimony of the greater number of witnesses, because of those circumstances and facts round about the testimony which carry conviction to the minds of the jury. You must take this testimony and weigh it, and consider these points, and decide whether these circumstances happened, or did not happen. You may come to the conclusion that the plaintiff is mistaken about these two cars ; that this connection was not as he stated. You may come to the conclusion that he is mistaken about connections on the two cars so closely. You may arrive at the conclusion that he is right, and that the officers of this road running these cars are mistaken, or have forgotten of this occurrence taking place.
    “ This is a matter that is before you; a plain, common circumstance which you are to consider without reference to the character of the parties, without reference to any sympathy; but which you are to weigh just as you would any other fact, and come to a conclusion; and until you arrive at that conclusion, whether those facts occurred as stated by the plaintiff or not, you are not in a position to go any further. You must decide that fact.”
    He then charged the jury, that if they found for the plaintiff they might assess exemplary as well as compensatory damages. In this part of his charge he referred to, and commented on, several decided cases as bearing on and sustaining his view, that exemplary damages could be given, but did not state the amounts of the verdicts in these cases. After the charge the following proceedings took place.

      The plaintiff’s counsel begged the judge to observe that the plaintiff took no exception to the charge, and the presiding justice said :
    I do not think you ought to, for I think the charge was altogether on your side.
    To this remark the defendant duly excepted.
    The defendant requested the judge to charge—
    1. If the jury believe the plaintiff’s story, the only damage he is entitled to recover is the sum of six cents, being the amount of the additional fare paid by him on another car as testified to by him.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    2. When the conductor of car Mo. 2 demanded of the plaintiff the payment of his fare, and the plaintiff refused payment, and failed to produce a transfer ticket as evidence of such payment on car 75, and he was requested by the conductor to leave the car and refused, the conductor was justified in using such force as was necessary to ensure the removal of the plaintiff from car Mo. 2.
    (This the judge refused to charge, and to his refusal the defendant duly excepted).
    3. Meither malice nor bad faith is shown on the part of the defendant; and this case does not fall within the rule of exemplary damages.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    4. If the jury believe the evidence on the part of the defendant, the defendant is entitled to a verdict.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    5. The plaintiff is bound to prove the damage, if any, sustained by him by reason of the alleged acts of the defendant; and, in this case, no damage beyond the payment of the additional fare of six cents has been proved.

      (This the judge refused to charge, and to his refusal the defendant duly excepted.
    6. When the conductor of car No. 2 demanded of the plaintiff that plaintiff should pay him the fare, or leave the car, the plaintiff should either have paid the fare demanded," or have peaceably left the car.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    After the jury had retired, and been absent over an hour, they sent a request to the presiding justice for instructions as to whether it was necessary for them to believe that defendant’s cars No. 75 and 2 connected on June 20th, 1868, as testified to by plaintiff, in order to render a verdict for the plaintiff.
    The justice communicated the jury’s request to the counsel of the respective parties. Counsel for plaintiff requested him to instruct the jury that it was not necessary so to believe. Counsel for defendant requested him to instruct the jury that the number and times of running of the defendant’s cars specified by plaintiff were material facts, and unless they believe his testimony with respect thereto, they should not find a verdict in his favor.
    But the justice returned answer to the jury that the counsel of the respective parties did not agree as to what his instructions should be, and he therefore would give them no instructions on the point at all.
    To this ruling and announcement the defendant duly excepted.
    The jury subsequently found a verdict for the plaintiff, and assessed his damages at the sum of five hundred dollars.
    The defendant moved upon a case made at Special Term, for a new trial; which motion was denied.
    The appeal is from the order denying motion for new trial, and also from the judgment.

      Jas. P. Lowrey, attorney, and of counsel for appellant.

      George the Count Johannes, attorney and counsel for respondent.
   By the Court.—Freedman, J.

Allowing, at the commencement of the trial, the amount claimed in the complaint to be increased from $3,000 to $5,000, without a previous notice of motion therefor, was a matter resting in the discretion of the court (Richtmeyer v. Remsen, 38 N. Y. 206; Meyer v. Fiegel, 7 Rob. 122). Hot the slightest harm has accrued to the defendant from such amendment, and consequently no reason exists for the interference of the General Term with the exercise of that discretion.

The detailed statements made by the court, in charging the jury, of other similar cases and of the action of the courts therein, and the remark to plaintiff’s counsel in reply to said counsel’s announcement, that he had no exceptions to take, involve no error, but present mere questions of propriety. These are not re viewable on a bill of exceptions, and can only be considered on a motion for a new trial, if assigned as a specific ground for the granting of a new trial, for the reason that the jury may possibly have been influenced thereby. Not having been thus urged, we must disregard them on appeal.

Defendant’s exceptions to the rulings of the court below in admitting certain evidence, and to the refusal of the court to reinstruct the jury, after their retirement under an elaborate charge covering the point respecting which additional information was sought, are clearly untenable.

On the trial, defendant’s superintendent testified that “if a passenger leaves one car, and gets on another, he “ must either pay his fare or produce a transfer. If he “does neither, the instructions of the company are “to put him off, using as little force as may be neces- “ sary. The only guide to the conductor is the fare or “a transfer.” Upon this testimony the court was justified in charging, that putting a passenger off from a car in case of refusal to pay fare, is within the line of the duty and employment of defendant’s conductors. And the jury having by their verdict adopted plaintiff ’ s version of the occurrence, instead of believing the testimony of defendant’s witnesses, defendant’s liability to respond in damages became fully established. For it is well settled that, if an act is done by a servant in the business of the master and within the scope of his employment, the master is liable to third persons for any abuse of the authority conferred, and for injuries resulting from any error of judgment or mistake of facts by the servant, as well as for those resulting from a negligent or reckless performance of his duties. This rule applies equally to corporations and natural persons (Weed v. The Panama R. R. Co., 17 N. Y. 363; Sandford, Adm’r, v.The Eighth Av. R. R. Co., 23 N. Y. 343; Drew v. The Sixth Av. R. R. Co., 26 N. Y. 51; Higgins.v. The Watervliet Turnpike Co., 46 N. Y. 23).

The remaining question, therefore, is to what extent the law will hold the defendant liable. This is a grave and most important question. Upon this point the jury were instructed that, in case they found for the plaintiff, they might assess exemplary as well as compensatory damages. The latter were held to be such as would compensate the plaintiff for the injuries actually sustained, including his pain and anguish of mind and body. The former were defined as damages which are given as an example, by way of punishment, to prevent a repetition of the wrongful act complained of, and they were described as something in the character of a punishment by the people, with the difference, however, that the person injured is the one that recovers the damages-, instead of the people, by fine or imprisonment. At the same time the jury were severely cautioned against rendering a verdict for an excessive amount. They were instructed that the case is not one calling for severe punishment; that if they came to the conclusion that they must find damages for the plaintiff, and that they must be exemplary as well as compensatory damages, they should consider the character of the offence, and affix a sum within the limits of reason, by way of example, but not as an act of impulse or of passion; and that they should decide between the plaintiff and the corporation defendant as they would decide between man and man. These definitions and instructions were not only substantially correct, but eminently proper, if the case itself justified the instruction in any manner that the jury might give exemplary in addi tion to compensatory damages. Damages for pain and anguish of body and mind are not exemplary or punitory in their character, in any strict or proper sense of those terms, but compensatory (Morse v. The Auburn & Syracuse R.R. Co., 10 Barb. 621); and in actions for injuries to the person occasioned by the negligence of the defendant, it has been repeatedly held, that the plaintiff may recover damages for his pain and suffering not only down to the time of the trial, "but future suffering, which, the evidence renders reasonably certain must necessarily result from the injury, may also be compensated (Curtis v. Rochester & Syracuse R.R. Co., 18 N. Y. 534, affirming S. C., 20 Barb. 282; Caldwell v. Murphy, 1 Duer, 233, affirmed in 11 N. Y. 416).

The same rule as to compensatory damages applies with still greater force to actions of assault and battery, and it is no answer to the enforcement of the rule that the assault was committed by an agent, if committed by such agent in the line of his duty and within the scope of his employment. In such case'the master is liable as principal.

How, in Caldwell v. The Hew Jersey Steamboat Co., 47 N. Y. 296, the present Court of Appeals fully endorsed the principle that, in any case where exemplary damages may be recoverable against the servant, they should be allowed against the master, if it appears that he had reasonable notice of the negligent habits of the servant, or if he left the servant without control or supervision in the work. In addition, it was distinctly held, that corporations are not exempt from the infliction of punitive damages in a proper case. That the case at bar is one of that character, seems to be clearly apparent from the decision of the Supreme Judicial Court of Maine in Goddard v. The Grand Trunk Railway, reported as a leading case upon the points involved in the 10th volume of the new series of the American Law Register. Justice Walton, in delivering the opinion of the court in that case in favor of sustaining a verdict of $4,850, discusses at length the question of the liability of corporations as common carriers of passengers for the unlawful acts of their employes committed upon such passengers, to whom the said corporations, as such carriers, owe the legal duty of exercising the highest degree of care that human judgment and foresight are capable of, to make the journey safe. He then gives an interesting review of the origin, growth, and application of the doctrine of exemplary damages, and points out that the said doctrine is even more beneficial in point of public interest in its application to corporations than in its application to natural persons. His reasoning upon this point commends itself so forcibly to the intellect, and is so fully sustained by "the numerous authorities cited in its support, that further elaboration of the subject here would be a work of supererogation. A simple reference to. it is amply sufficient.

There being no error in the proceedings below, the judgment and order appealed from must be severally affirmed with costs.


author: , By the Court.—Curtis, J.

text:
    JOHN T. HOWARD, Plaintiff and Appellant, v. ISAAC T. SMITH, Defendant and Respondent.
    I. Judgments of Courts of Sister States.—Impeachment of, for Want of Jurisdiction over the Person.
    1. In an action in this State founded on a judgment rendered by a court of another State, the judgment may be shown to be void for such want of jurisdiction.

    2. What, if shown, will suffice for such impeachment.

    1. Non-service of process coupled with non-appearance by an authorized attorney.
    3. Contradicting the record to show want of jurisdiction.

    1. A party defendant is not estopped by the assertion of jurisdictional facts.

      a. Although, the record assert that he duly appeared by attorney, he may prove that such appearance was wholly unauthorized (for a previous decision on these points and others, see S. C. 33 Superior Court, 124).

      4. Estoppel.—Motion in sister State to set aside the judgment, a. Denial of such motion, although the motion was made on affidavit, and a full hearing had, does not prevent the defendant from raising the question of jurisdiction when he is sued in the courts of this State on such judgment, nor from proving such facts as will, or will tend to, show want of jurisdiction.
    Before Mokell, Curtis, and Sedgwick, JJ.

      Decided November 30, 1872.
    Appeal from judgment and order denying motion for a new trial.
    The action is brought upon a judgment recovered in California against the defendant by the assignors of the present plaintiff, August 22, 1851. The defence is, that the attorneys who appeared for the defendant in California, did so without authority; that the defendant was never served with process, and that the court never acquired jurisdiction of the parties or proceeding, and that the judgment was a nullity.
    On the trial, the court overruled plaintiff’s objection to the admissibility of the defendant’s evidence impeaching the authority of those who appeared for him in California.
    The court also refused to admit evidence to show that the defendant employed an attorney in California, and directed him to take measures to be relieved from this judgment, and that upon hearing all,the counsel and affidavits on both sides, the motion was denied. The plaintiff excepted .to these rulings of the court.
    The judge in his charge submitted the question to the jury, whether the attorneys who appeared for defendant in California were authorized by him to do so, with instructions to find for the plaintiff, if they found they had such authority; and if not, then to find for the defendant.
    The jury rendered a verdict for the defendant.

      S. P. Nash, for appellant.

      George Putnam Smith, for respondent.
   , By the Court.—Curtis, J.

There has been a conflict of decisions as to how far a defendant, sued upon a judgment recovered in another State, might impeach it, when it appears to be regular on its face. In this State, from an early period, the principle seems to have been generally adhered to, that the defendant under such circumstances was not precluded from showing that he was never served with process, and never appeared or authorized any appearance to be entered for him, and thus show facts impeaching the jurisdiction over the parties of the court rendering the judgment (Black’s Case, 4 Abb. P. R. 162; Kerr v. Kerr, 41 N. Y. 272).

The adherence to a rule contrary to this, and turning over a defendant who had never been served with process, and who had never authorized an appearance to a remedy against some one who had appeared for him in another State without authority, especially in case the attorney so appearing was irresponsible, might often operate very unjustly and ruinously to the defendant.

The full faith and credit -which section 1, article 4 of the Federal Constitution requires to be given in each State to the records and judicial proceedings of every other State, can only be justly construed as referring to those records and judicial proceedings where the State court has jurisdiction of the suit and of the parties to it; when it was otherwise, .it could never have been intended by the framers of the constitution that they could not be called in question and impeached.

It would be unjust and oppressive to hold, that, although the appearance is without authority, the defendant is bound by the judgment, until he gets it opened in the court where it was rendered. If it is a nullity, it should be sufficient for him to show it to be so, when it is attempted to be enforced. There is no justice or propriety in enforcing it against him, until he can succeed in establishing, in perhaps a distant locality, that it is void.

The principle that leads courts to hold, that the validity of judgments in other courts of the saipe State shall not be disputed collaterally, but that applications must be made to the court rendering the judgment, does not apply to judgments recovered in other States. It is not the policy of the law, that a citizen shall be cut off from recourse to the courts of his own State for protection from a spurious judgment.

The views of this court, holding that the question of the authority of the attorneys who appeared for the defendant in another State, when a contested fact, is to go to the jury, are found in the report of a former trial of this case in 33 N. Y. Supr. Ct. R. 124.

This brings us to the consideration of the plaintiff’s second point, that the court erred in refusing to admit evidence to show that the defendant employed an attorney in California, and directed him to take measures to be relieved from the judgment, and that upon hearing all the counsel and affidavits on both sides, the motion was denied. The failure of such an application may be but an instance, in this very case, of the hardships and injustice to which a resident here may be subjected, who seeks to have a judgment that has been rendered against him in another State, without jurisdiction, set aside. There is -no reason why a failure of a motion to be relieved from such a judgment in another State, should prevent the defendant from showing here, that the court in that State had no jurisdiction over the suit or the parties to it. The failure of such an application by motion, does not make the question of jurisdiction res adjudicóla. It never was intended to be, and is not, a barrier, when denied, to the other rights and remedies of the defendant claiming to be aggrieved.

The judgment and order appealed from should be affirmed, with costs to abide the event of suit.