text:
    JOSEPH U. FAGNAN, Plaintiff and Repondent, v. CHARLES KNOX, Defendant and Appellant.
    1. MALICIOUS PROSECUTION.
    1. Probable cause.
    («). Want of., when question of law.

    1. When the facts are undisputed, or found by a jury, it is c question of law whether such facts show a want of probable cause or not.
    (5). What facts show prima facie probable cause,when the prosecution complained of was a criminal one for embezzlement.

    1. That the books kept by plaintiff in the course of his employment as book-keeper for the defendant, disclosed items entered in the petty cash book as drawn by him which were not posted in the general cash book, and also items entered in the general cash book, which were not posted in the ledger, and also erasures in plaintiff’s ledger account, true additions being erased and incorrect additions-in plaintiff’s favor substituted ; that soon after plaintiff’s attention was called to these matters, and payment demanded for what the books upon a statement prepared from them by another book-keeper showed to be duer he conveyed to defendant some real estate held by him, and his wife also conveyed to defendant some real estate belonging to her, which she refused to do until she-was paid two hundred and fifty dollars, which was paid her; and that plaintiff admitted defendant’s claim to be correct; are sufficient facts to establish such prima facie probable cause.
    (c). What facts will rebut such prima facie ease of probable cause.

    1. That plaintiff kept a memorandum-book in which he entered sums of money that he occasionally loaned to defendant, v/hich book would explain the alleged improper credits he had given himself in his ledger account, and the apparent errors and discrepancies in the books of defendant kept by him, in a way consistent with his innocence of the charge of embezzlement; that prior to defendant’s complaint charging him with embezzlement, he •explained to defendant that this book would show the amount loaned to him (defendant) by him (the plaintiff), and which he deducted from the ledger 'when he made out his cash account; that defendant asked to see the book; plaintiff allowed him to take it, and he carried it away with him, and ever afterwards denied having it or having seen it; are sufficient facts to rebut such prima facie case of probable cause.

      So too: the facts that prior to the setting on foot the prosecution for embezzlement, plaintiff offered to explain, with such memorandum-book, such alleged improper credits, and apparent errors and discrepancies, and that such book would so explain them, establish the want of probable cause.
    ‘2. Disbelief in the change on which the prosecution was FOUNDED.
    (а) . Evidence of competent.

    1. It is competent as bearing both on the question of want of probable cause and on that of malice.
    (б) . Facts tending to show such disbelief.

      1. The fact that defendant prior to the complaint against the plaintiff charging him with embezzlement settled with him for the money, afterward claimed to have been embezzled, as and for a debt on contract, express or implied would tend to show such disbelief.
    8. Malice.

      (a). Implied, as a general principle, from want of probable cause.

      {b). Deprivation of meo,ns of exculpation.

      1. If the defendant deprives the plaintiff of his means of exculpation, and then prosecutes him criminally,—such acts are on their face malicious.

    4. Damages.

      (а) . Indemnity is awarded for all the injury to reputation, feelings, health, mind and person caused by the arrest including the expenses of the defense.
    (б) . Facts bearing on the question of damages.

    1. The pre-existing business relations of the parties, conveyances from plaintiff and his wife to defendant and a general release from defendant to plaintiff executed after the making of the charge and before the arrest, the circumstances surrounding the execution of such instruments, the impaired health, and reduced circumstances and impoverishment of the plaintiff after his arrest, the appearance of defendant before two grand juries, are all facts bearing on the question of damages, and evidence respecting them is admissible.
    5. Evidence.

      (a). Health oj body and mind.

    1. Witness as to, competency of.

      ' (a). Laymen may state acts they hare observed, and may sometimes give their impressions formed at the time as to whether the acts so observed were rational or irrational. The case at bar does not call for the strict application of the rules pertinent to an inquiry as to whether a person is non compos mentis or of testamentary capacity.
    H. WITNESS, EXAMINATION OF.
    1. Answers irresponsive to the questions.

      (a). The party deeming them prejudicial must- move to strike them out.
    2. Questions improper.

      (a). Overruling an objection to them does not constitute cause for reversal where the answer was proper and competent evidence.
    Before Curtis and Sedgwick, JJ.

      Decided August 3, 1875.
    Appeal by the defendant from an order denying a motion for a new trial and from a judgment.
    The facts sufficiently appear in the opinion.

      John M. Scribner, Jr., for appellant.

      Townsend & Weed, and John D. Townsend, for respondent.
   By the Court.—Curtis, J.

In order to maintain this action, it devolves upon the plaintiff to establish that there was a want of probable cause for the criminal prosecution of which he complains, and that this prosecution on the part of the defendant was malicious.

When the facts are undisputed, or when they fail to show a want of probable cause, a question of law arises, which it comes within the province of the court to decide. But when there is conflicting evidence as to the matters insisted upon as constituting a want of probable cause, and the facts are in dispute, then it is for the jury to determine what the facts are. Whether the facts found to exist constitute probable cause is still an abstract question of law to be determined by the court (Weaver v. Townsend, 14 Wend. 192 ; Bulkeley v. Keteltas, 6 N. Y. 387).

The defendant to show at the trial that there was a probable cause for his prosecution of the plaintiff, proved that the books kept by the plaintiff in the course of his employment as book-keeper for the defendant, disclosed that there were items to the amount of several hundred dollars entered in the petty cash book as drawn by him which were not posted by him in the general cash book, and also items amounting to several hundred dollars entered in the general cash book, which were not posted by him to his account in the ledger. There were also erasures in the ledger in the plaintiff’s account, true additions having been erased and incorrect additions, in the plaintiff’s favor, inserted in their place. It was also shown that soon after the defendant’s calling the plaintiff’s attention to these matters and demanding payment for what the books upon a statement prepared from them by another book-keeper employed by the defendant for that purpose showed to be due, the plaintiff conveyed a house and lot in Brooklyn belonging to him to the defendant, and the plaintiff’s wife also conveyed a house and lot in Brooklyn, standingin her name, to the defendant, and a general release was given them by the defendant. The property thus conveyed appears to have been substantially all the means of the plaintiff and his wife. She refused to convey her house to the defendant, until he gave her a check for two hundred and fifty dollars, which he did, and which was paid. There was testimony that the plaintiff admitted that the statement of the defendant’s claim was correct.

These facts establish prima facie probable cause for the criminal prosecution of the plaintiff by the defendant.

The plaintiff testified that he kept a memorandum-book, in which he entered sums of money that he occasionally loaned from his own drawings to the defendant, and that this memorandum-book completely explained the apparently improper credits he had given himself in his ledger account, by showing that the sums deducted from his account equalled those which this memorandum-book showed he had loaned the defendant. The plaintiff also testified that the defendant, the day after making the claim upon him, came to his house in Brooklyn, where he was ill in bed, and that he then explained to the defendant that this private memorandum-book would show the amounts loaned to him by the plaintiff, and which were deducted from the ledger when he made out his cash account, and that the defendant then asked to see this memorandum-book ; that he allowed him to take it and the defendant carried it away with him, and ever afterwards denied having it, or having seen it. The defendant testified at the trial of the plaintiff before the criminal court, where the plaintiff was acquitted, that he never heard of this memorandum-book until it was spoken of at that trial.

The statement of the plaintiff that the defendant carried away the memorandum-book was corroborated by the evidence of his wife; Louis H. Dickerson, a member of the bar, testified, that he called with the plaintiff on the defendant three or four days after this interview, and that the plaintiff then stated to the defendant, that the book which he gave him the other day at his house would explain all, to which the defendant replied, “I know nothing about that.” The statement of the plaintiff that he thus loaned money to the defendant at times is claimed by the plaintiff to be confirmed by the testimony of the defendant at the criminal trial, that the plaintiff had charge of all his money, and that when he wanted money for himself he asked the plaintiff for it.

It appeared that the plaintiff had more than twenty years previously entered the defendant’s employment, as a general clerk or porter in his hat store; that he had remained with him continuously during that period, with one exception of a few months ; that he at one time had a small interest in the profits of the business ; and that their relations were close and confidential.

-There was evidence that the plaintiff bad not much - knowledge of book-keeping. He testifies that when he showed the erasure and amount of loan of four hundred dollars, subtracted on the cash-book, and also his . memorandum-book to the defendant, the latter said, “it was all right,’’and he did not, for this reason and the confidence that was existing between them, charge himself by independent entries.

The plaintiff testified that after the conveyances by him and his wife to the defendant, the latter on one occasion offered to give him a recommendation, if he would go to Philadelphia or Baltimore.

The testimony shows that the plaintiff, at the time-the defendant first made the claim, was in a feeble condition owing to illness, and tends to show that at no-period has he been a very strong man intellectually.

The defendant denies having ever seen the memorandum-book testified to by the plaintiff, and states-that his proposed recommendation was for only industry and sobriety. The clerks who were then in the-defendant’s employ also testify that they never saw or heard of this memorandum-book.

There was conflicting testimony as to the value of the property conveyed to the defendant, and as to whether it was in excess of the amount claimed by the defendant.

There was the testimony of some witnesses introduced, tending to impeach the defendant’s general character for truth and veracity, but it was sustained by several other witnesses called on his behalf.

The criminal prosecution 'was commenced about-two months after the conveyance of the houses to the defendant, and after the plaintiff had obtained a situation in another New York hat store, and a few days-after an altercation by the defendant with the plaintiff’ s wife.

If the testimony on the part of the plaintiff was true, the plaintiff was not only innocent of the charge made against him by the defendant, but the defendant, when he proceeded against him criminally, knew it, and in addition to that, wrongfully withheld from him the memorandum-book that contained the explanation of the irregularities apparent upon the books.

It is also clear, if what the plaintiff claims to be the facts of the case are so found by the verdict of the jury, and rightfully so found, that there was not only a want of probable cause for the prosecution, but that the prosecution sprung from base motives, and was malicious.

The defendant moved to dismiss the complaint at "the trial, on the ground that the defendant had probable cause for the prosecution of the plaintiff, and that there was no proof of any malice.

To the denial of this motion he excepted.

Upon the conflict of testimony in respect to this, ■questions of fact arose, which it would have been erroneous for the court to have taken from the jury.

These qiiestions were very fairly and clearly submitted to the jury, and their finding was in favor of the plaintiff. It is in substance, that the prosecution was instituted maliciously, and without probable ■cause, and without the prosecutor’s belief that the charge made by him was true.

Upon considering the evidence, it is impossible to ■sustain the claim of the defendant, that this verdict is ■against the evidence, and the weight of evidence, and wholly unsupported by the testimony. The evidence was conflicting, and it was exclusively for the jury to ■determine what was the truth. It is true, that public policy requires that a person prosecuting a criminal -charge in good faith and upon reasonable grounds, ■should be protected from liability therefor; but when the prosecution is claimed to have been in bad faith, ■and groundless, and there is evidence introduced to that effect, upon which the jury so find, it neither accords with the law nor with public policy, that such a verdict should be lightly disturbed. It matters not how this conflicting evidence may have impressed the ■court; the jury are solely to determine what is the fact.

The defendant excepted to the charge of the judge, in instructing the jury that if they found that, prior to the complaint by the defendant charging the plaintiff with embezzlement, the plaintiff gave to the defendant a memorandum-book containing memoranda of sums of money paid to the defendant by the plaintiff, which would explain the apparent errors and discrepancies in the books of the defendant kept by the plaintiff, in a way consistent with plaintiff’s innocence of the charge charge of embezzlement, then the defendant had no probable cause for charging the plaintiff with embezzlement.

• It is claimed that, even if the defendant did receive such a book from the plaintiff, he was under no obligation to look at it.

Embezzlement is the fraudulent appropriating to one’s own use, the money or goods entrusted to one’s care and control by another. This very relation implies that the party so entrusted shall account with bis principal. To hold that the principal may deprive the person he so entrusts of his means of accounting, and that he may shut his eyes and refuse to look at his explanation or to account with him, and proceed to prosecute criminally, would be a harsh rule to establish, and lead to oppressive abuses.

Heither can the defendant’s exception to the part of the charge—where the jury were instructed that if the plaintiff offered to explain with this book, these same apparent errors and discrepancies, and the jury believed on the evidence such book would explain them, there was no. probable cause for the prosecution—be sustained. The same views apply to this as to the preceding exception. It was as much the duty of the defendant to receive from the plaintiff, his clerk, his reasonable and sufficient explanation in respect to the matters entrusted to him, as it was the duty of the plaintiff to render such explanation. The law seeks to protect both in their respective relations, and neither are placed subject to the unreasoning or blind will of the other.

The remaining exceptions by the defendant to the judge’s charge were to instructions that if they found that the defendant prior to the complaint against the plaintiff charging him with emblezzlement, settled with the plaintiff for the moneys the defendant afterwards charged the plaintiff with having embezzled, as.and for a debt on contract, expressed or implied, such fact would be evidence tending to show that the defendant did not believe the plaintiff had emblezzled the moneys ; and that if they found that there was no probable cause for the arrest and indictment of the plaintiff, malice may be implied.

It is apparent, that- if the defendant in the first place, and when the matter was fresh in his own mind, settled with the plaintiff as and for a contract debt, that such settlement would tend to show that the defendant did not believe the plaintiff was guilty of embezzlement It is reasonable to infer that the defendant’s conduct in that respect, was governed by his belief. It was proper for the court to submit it to the jury, as tending to show what was his belief. In the conflict of evidence it was a circumstance which the jury might properly consider and give it just weight.

As a general principle, where there is no probable cause for the prosecution, malice may be implied.

In the present case, if the defendant, as the jury found, wrongfully deprived the plaintiff of his means ■ of exculpation, and then prosecuted him criminally, it would be on its face a malicious act, and such without resorting to any very delicate theory of malice by inference and implication to establish it (Murray v. Long, 1 Wend. 140 ; Burhans v. Sandford, 19 Wend. 417 ; 2 Green. Ec. § 453).

Several exceptions’ were taken by the defendant at the trial to the admission of evidence in reference to the original employment of the plaintiff by the defendant, the terms upon which it continued, the general release from the defendant to the plaintiff, the conveyances from the plaintiff and from his wife to the defendant, the impaired health and reduced circumstances and impoverishment of the plaintiff after his arrest, the appearances of the defendant before the two grand juries, and the indictment found by the last grand jury on which he was tried. It was claimed that all this was immaterial and calculated to prejudice the defendant with the jury.

The rule of damages in an action for a malicious prosecution is not a restricted one. Indemnity is awarded for all the injury to reputation, feelings, health, mind, and person caused by the arrest, including the expenses of the defense (Sheldon v. Carpenter, 4 N. Y. 579 ; 2 Green. Ed. § 456).

The plaintiff claims that he sustained injury in these respects, and that for the purpose of so injuring him the defendant preferred the criminal charge against him. The pre-existing business relations of the parties, the acts and motives of the defendant, and the injuries of the plaintiff, were material to the issues to be determined at the trial. There was no relaxation of the rules of evidence in these respects that was unjust to the defendant. The questions of probable cause and of his faith or malice in making the charge, were more or less to be determined from the occurrences disclosed by a complete history tif what pertained to the transaction.

There seem to be no very stringent and artificial rules in regard to actions for malicious prosecution. It is held that the prosecution complained of must have been ended and determined in the plaintiff’s favor. But when the oppression or fraud of the prosecutor prevent the plaintiff from making out his defense, this restriction ceases to be of effect (Burt v. Place, 4 Wend. 591).

The defendant claims that his exceptions taken during a very protracted trial, eighty in number, present manifest and manifold errors of law, which entitle him to a reversal of the judgment, and asks that the court consider them all. In doing this an embarrassment arises from the case not showing that any ground of objection was stated for very many of them. The most careful consideration of the evidence will not always enable an appellate court to divine what was the ground of objection where none is stated; and to reverse a judgment on grounds of objection not stated at the tria!, where the difficulty might have been remedied, hardly accords with the due administration of justice. In support of the allegation in the complaint, that the charge against, and the arrest of, the plaintiff was published in several newspapers, notices in two newspapers were read at the trial, to which the defendant objected, stating no ground. If he had stated that the plaintiff had already proved the publication or that it was immaterial or any other ground of objection, directing the attention of the court to it, there might have arisen no occasion for an exception, or if there did, it would have been entitled to more consideration. The judge stated that he allowed the publication to be read, to show that notice had been taken in the public papers of the criminal charge against the plaintiff, though a good deal that was spread out in them was entirely immaterial. It does not appear that; the contents of these notices tended to prejudice the defendant with the jury.

There were several exceptions taken by the defendant to evidence in reference to the present and former condition of the plaintiff as to health and social relations. . The defendant introduced evidence tending to prove that the plaintiff’s health was impaired by a chronic difficulty before his arrest, and urged that the plaintiff falsely attempted to induce the jury to believe that it was impaired by the arrest. The defendant’s objections to this part of the testimony on the plaintiff’s part were on the ground of incompetency, without specifically stating the ground upon which the testimony was incompetent. The investigation as to whether the plaintiff suffered from a depressed state of body and mind after the arrest, and if that state was occasioned by the arrest, is not necessarily one upon which experts are alone competent to speak. There are phases mental and physical of the human economy, concerning which persons of ordinary intellect are competent to testify. The present was not an inquiry as to whether the plaintiff was compos mentis, and did not call for the strict application of the rules pertinent to such an inquiry, or to the investigation of testamentary capacity. The impression of a layman formed at the time, as to whether the act Le testifies he observed was rational or irrational, may sometimes be given in evidence (Hewlett v. Wood, 55 N. Y. 634).

The court ruled that these witnesses, laymen, could only state the acts the plaintiff performed, and that the jury could determine. When in answer to the question, “How did he act?” the witness volunteered statements irresponsive to the question, the defendant should have moved to strike them out, if he deemed them prejudicial. In the instance previous to the ruling of the court, where the form of the question embraced what was perhaps objectionable, it will be seen that the response was confined to what the witness observed.

The consideration of the numerous exceptions in this case, does not lead to the conclusion, that a reversal of this judgment is called for.

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

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    JAMES PATTERSON, Plaintiff and Respondent, v. CHARLES S. STETTAUER, and another, Defendants and Appellants.
    I. DEPOSITION TAKEN IN AN ACTION AGAINST CO-PARTNERS BEFORE ONE OF THE DEFENDANTS HAS APPEARED (WHO SUBSEQUENTLY APPEARED AND ANSWERED), BUT AFTER THE OTHERS HAD APPEARED AND ANSWERED,

      Is admissible on the trial of the issues formed by the answers as against those who had appeared and answered at the time it was taken, and being so admissible must affect the one who had not then appeared to the same extent as it would have affected him as a partner of the others if he had not appeared at all.
    1. A ruling to this effect is correct.
    . XL BILLS OF EXCHANGE—DRAFTS.
    1. Authority to draw, construction of.
    An agreement by A to deliver to B goods from day to day for a period extending over several months, and by B to pay for such goods on the first day of each month in drafts drawn by A on B at twenty days’ sight,

      does not restrict

    A to drawing on the first of each month but a single draft for all the goods delivered during the preceding month,

      does not require, as a condition precedent,

    to the obligation to pay that there should be a demand for the payments of such drafts.
    2. Drawn under such an agreement as above, generally on THE VENDEE FOR PART PAYMENT OF GOODS DELIVERED.
    1. Effect of delivery by drawer to a third person, and re-delivery to drawer.

      a. Delivery does not operate as an assignment pro tanto of what was due to the drawer under the contract, or of the drawer’s rights and interests thereunder.
    1. This although the agreement provided that the drafts should he endorsed as correct by a person specified in the agreement, and the same were so endorsed.

      b. Re-deliveby would operate as a be-assignment of what was originally transferred.

      1. Cause oe action. If the delivery operated to divest the drawer of any cause of action he then had, the re-delivery operated to re-invest him therewith.
    8. Pbesentment fob acceptance.
    1. Evidence sufficient to sustain a finding of presentment,

      a. Proof of repeated promises by the drawees to pay the draft is sufficient; it not appearing that the promise was made under a mistake as to the fact, or from a benevolent motive or moral and not legal obligation.
    1. This although the drawees testify that the draft was not presented.
    El. GOODS SOLD AMD DELIVERED—ACTION FOR.
    1. Special' contbact fob payment in a pabticulab mode does not intebfebe with the maintenance of such an action,—• when,

      a. When the defendant, upon being duly and properly requested to make payment in the mode prescribed refuses so to do.
    1. Drafts drawn as per special agreement by the vendor on the vendee for payment do not interfere with the maintenance of the action, when.

      a. When the drawee refuses to either accept or pay the drafts, and at the commencement of the action they remain unpaid and unaccepted in the vendor’s hands.
    8, Complaint, allegations in.
    1. What do not necessarily interfere with the action being for goods sold and delivered, and malee it one solely for damages for non-acceptance of drafts.

      a. When the complaint avers that defendant agreed with plaintiff in consideration of plaintiff’s delivering to him certain goods to accept, honor, and pay the drafts of tlie plaintiff on him, for the value of such deliveries, provided such drafts were endorsed as correct by a person named in the agreement; that plaintiff in pursuance of such agreement delivered a large quantity of goods of the value of thirty thousand dollars, and drew on defendant five drafts amounting in the aggregate to eleven thousand six hundred and four dollars and twenty-five cents, which were endorsed as correct by the person named in the agreement, and were duly presented to the defendant for acceptance who refused to accept, honor, or pay the same; that plaintiff is the lawful owner and holder thereof; that by reason of defendant’s failure to accept, honor, and pay said drafts, plaintiff has suffered damage in the sum of eleven thousand dollars; and prays judgment for damages in eleven thousand dollars;
    1. It states : a cause of action on the contract for that part of the value of the goods delivered for which the drafts sat forth in the complaint were drawn.

    2. The averments as to the drawing of the drafts, the presentment of them and the refusal to accept, honor, or pay, and the ownership of them, and the averment “ by reason of the defendant’s failure to accept, honor, and pay saids drafts,” do not necessarily malee the action one based solely on a muse of action for damages for refusal to accept.

    Before Curtis and Sedgwick, JJ.

      Decided August 3, 1875.
    Appeal by defendants from judgment entered on report of referee.
    The action was brought upon a contract made between plaintiffs and defendants, by which the plaintiffs promised to deliver to the government of the United States at the Bosque Rodondo Reservation, as many pounds of beef as might be called for by the government commissary. The defendants promised to pay the plaintiff therefor, six and one-half cents per pound tor the beef so delivered and accepted by the commissary. The contract provided “payment to be made on the first day of each month, in drafts twenty days’ sight on C. S. Stettaner & Co., 44 Hudson street, New York, said drafts to be endorsed by the commissary agent as correct.”
    The complaint was as follows:
    “ The plaintiff, by this his amended complaint, alleges :

      “ That at the times hereinafter mentioned, the-defendants above named, with one Perry Fuller, were-co-partners in trade, and doing business in the city of New York, under the firm name of C. S. Stettauer & Co., and at the city of Washington, D. C., under the firm name of Perry Fuller & Co.
    “That the defendants’ partners in business, under the firm name of C. S. Stettauer & Co., at Las Vegas, New Mexico, on or about February 10, 1868, agreed with this plaintiff, in consideration of this plaintiff’s furnishing and delivering* at Fort Sumner, in the Territory of New Mexico, a quantity of beef for said firm, that said firm would accept, honor, and pay the drafts-of this plaintiff upon them for the value of the said deliveries, provided said drafts so drawn by this plaintiff were, before presentation, endorsed by one W» Rosenthal, who was acting as the commissary for theNavajoe Indians, as correct.
    “The plaintiff further shows that, in pursuance of said agreement, during the months of March, April,, and May, 1868, he duly delivered a large quantity of beef of great value—to wit, of the value of thirty thousand dollars—at Fort Sumner, as required in and by said contract
    “This plaintiff further shows that at Fort Sumner, on April 23,1868, in pursuance of said agreement, he drew upon the defendants four drafts, in the words.and figures following:
    [Here the complaint set out four drafts, amounting in the aggregate to eight thousand one hundred and thirty-four dollars and twenty-eight cents. And then proceeded:]
    “The plaintiff further shows that each of said drafts was, before its presentation to the defendants, duly endorsed : Correct, W. Rosenthal, commissary Navajoe Indians,’ and also by John J. Chi sum, and was afterwards, to wit, on June 30,1868, duly present■ed for acceptance to the said drawees named in said bills, but the said defendants refused to accept, honor, ■or pay the'same or any part thereof.
    “That this plaintiff was thereupon compelled to, •and did, take up said drafts, and is now the lawful ■owner and holder thereof.
    “This plaintiff further shows that, at Fort Sumner, ■on May 1, 1868, in pursuance of said agreement, he drew upon the defendants a further draft, in the words and figures following:
    6 $3,505. 97.
    ‘ Fort Sumner, N. M., May 1, 1868.
    ‘ Twenty days after sight pay to the order of myself three thousand five hundred and five dollars, value received, and charge the same to account of
    ‘ JAMES PATTERSON.
    * No.-13.
    6 To C. S. Stettauer & Co.,
    45 Murray street, New York city.’
    “ The plaintiff further shows that the said draft was, before its presentation to the defendants, duly endorsed : ‘ Correct, W. Rosenthal, commissary Navajee Indians,’ and also by this plaintiff; and that the same was duly presented for acceptance to the defendants on May 14, 1838.
    “That the defendants refused to accept, honor, or pay said draft, and that the plaintiff is now the lawful ■owner and holder thereof.
    “The plaintiff' further shows that by reason of the failure of the defendants to accept, honor, and pay said drafts, this plaintiff has suffered damage in the •sum of eleven thousand six hundred and forty dollars, with interest from May 23, 1868. That afterwards, •and on or about January 3, 1871, the said Perry Fuller ■departed this life, leaving the above-named defendants the surviving partners of the said firm of C. S. Stettauer Co. and Perry Fuller & Co.

      “ Wherefore plaintiff demands judgment against the said defendants for damages in the sum of eleven thousand six hundred and forty -fife- dollars, with interest as aforesaid, besides the costs of this action.”
    The defendants were partners in business under the firm name of 0. S. Stettauer & Co. The evidence tended to show that during the month of April, 1868, the plaintiff delivered to the commissary, under the contract, a quantity of beef, which was accepted by the commissary, and which, at the contract price, entitled the plaintiff to draw' upon the defendants for a sum greater than four thousand five hundred and five dollars and ninety-seven cents. The plaintiff drew his draft at twenty days’ sight, dated May 1‘ 1868, for three thousand five hundred and five dollars and ninety-seven cents, to the order of himself, upon the defendants, and transferred it for a valuable consideration to a firm of Bold & Brunswick. This draft was upon its face certified to be correct by the government commissary. A notary testified without objection, that he presented this draft for acceptance at 45 Murray street, to a person representing Charles S. Stettauer & Co. That a' memorandum across the draft in the words, “Protest for non-acceptance. B„ S. Fanning, Notary Public,” was in the handwriting of witness. The witness testified that he recollected nothing about the presentment of the draft apart from the memorandum, and that the reason he said he presented it to a person representing the defendant’s firm was, that it was his habit always to do so, and he spoke entirely from his habit. No question was made upon the trial as to the place of presentation being 45 Murray street, and not 44 Hudson, named in the contract.
    It appeared that about August 20, 1869, the defendant’s firm of C. S. Stettauer & Co. was dissolved by written articles signed by the various members of the firm. The articles referred to the contract now in suit, and a schedule stated : “The contract owes Andreas Bold ” (a member of Bold & Brunswick) “ on draft drawn by Patterson for three thousand five hundred and five dollars and ninety-seven cents.” After ' the bill had matured, the plaintiff paid it to Bold & Brunswick, who re-delivered it to plaintiff. There was much evidence, that the defendants who appeared in this action had after the maturity of the bill promised on several occasions to pay it.
    At the conclusion of the .testimony on both sides, the counsel for the defendants moved for a non-suit as to the draft for three thousand five hundred and five dollars and ninety-seven cents, on the grounds :

      First. That the plaintiff had no right, under the contract, to draw any drafts, except for beef delivered up to the first day of some month ; that is to say, on March 1, 1868, for the beef delivered in February, 1868 ; on April 1, 1868, for the beef delivered in March preceding; on May 1, 1868, for the beef delivered in April preceding; and on May 22, 1868, for beef delivered between April 30 preceding and May 22.
    That the plaintiff could draw but four drafts in all under the contract.
    ¡Nor could the plaintiff, when entitled to draw a draft, draw one for less than the amount due him up to the first day of some month or May 22, unless he expressly released the defendants from the balance of the payment for which he was entitled to draw.

      Second. That it appeared that the draft of May 1, 1868, was drawn fora less amount by some thousanJs of dollars than the plaintiff was entitled to draw for.

      Third,. That the commissary agent, Rosenthal, had no authority to endorse as correct any diafts not drawn in pursuance of the terms of the contract. That his authority to so endorse must be strictly pursued.

      Fourth. That as to this draft, there was no proof at all' of any kind of presentment for payment; that, indeed, there was no competent proof of any presentation of that draft for acceptance.
    Fifth. That the evidence shows that at the time of the alleged presentment for acceptance and payment and the refusal to pay the draft in question, it was held by persons other than the plaintiff, to whom he had negotiated the same for value, and who knew it was drawn under the contract in question, and took it on the faith thereof; and that the cause of action against the defendants, arising upon that refusal, was therefore in those other persons, and had never been assigned to or become re-vested in the plaintiff. That the cause of action did not arise on the draft, the ' defendants- not being parties thereto, but upon the refusal to pay it; and the plaintiff did not become re-vested with that cause of action by subsequently taking up the draft as he did.
    The referee denied the motion for a non-suit, to which decision the counsel for the defendants Stettauer excepted.
    Defendant’s counsel also moved for a non-suit as to the four other drafts, but as the final decision was in his favor as to them, the motion and grounds therefor need not be enumerated here.
    The counsel for the defendants requested the referee in settling this case to find the following facts:

      First. That the draft of May 1, 1868, for three thousand five hundred and five dollars, specified in his report, was never presented for acceptance or payment to any member of the firm of 0. S. Stettauer & Co. personally.
    The referee refused so to find on the ground that he did not consider such finding material to the issue. Defendant excepted, and then requested the referee to find one way or the other as to this fact; that is, either that the draft was or that it was not presented for acceptance or payment to any member of the said firm personally. The referee refused so to find on the ground that he considered the question presented by such finding immaterial. The defendant excepted to such refusal.

      Second. That the said draft of May. 1, 1868, was never presented for acceptance at the oifice of the defendants (0. S. Stettauer & Co.). Nor was that draft ever presented at their office for payment. The referee refused so to find, and finds the contrary. Defendant excepted.
    The other material matters sufficiently appear in the opinion. z

      R. W. Townsend, attorney, and A. R. Dyett, of counsel for appellant, urged :
    I. The referee erred in admitting the deposition of Andrew Napier. If Charles S. Stettauer never had answered, a joint debtor judgment might have'been rendered which would not have affected his separate property, but having answered, it "was impossible to render a judgment which would not affect him personally.
    II. The referee erred in refusing to non-suit the plaintiff, (a) The draft being for less than the whole of the amount of beef delivered during the preceding month, was not authorized by contract. Bach payment, like monthly payments of rent on a lease, was indivisible, and he could not split up his demand therefor by drawing several drafts which, if he could draw, he could negotiate to third parties (as indeed he did), and thus compel the defendants to make separate payments (it might be of one dollar apiece), to a legion of assignees, which, would be entirely inadmissible (15 Johns. R. 229; 16 Id. 131; 1 Wend. 487; 16 N. Y. 54, 87, 548; 43 Id. 243; 1 Sween. 19; 19 Wend. 207; 54 Barb. 191; 3 Keyes, 40). We do not mean that the plaintiff might not release the defendants from liability for the residue of the monthly payment, but his intention to do so should be expressed ; and that lie did not intend to-do so is evident from the fact of his drawing other drafts. Without such a release it is perfectly evident that if the defendants should voluntarily pay a draft for the less sum they would thereby consent to the severance. If the payments under the contract were to-be made generally, without anj'- previous demand, and an action were brought for a part of an indivisible payment, the plaintiff could recover, because he might sue for a- part, and the only consequence would be that the judgment would bar a recovery for the residue. But where a demand is necessary, especially where as here, a prescribed formula is to be observed in making it, such a demand is a condition precedent, and the plaintiff can not recover on a specific demand of a part only, without an express release of the residue, not because he sues for a part only, but because the defendants were not obliged to comply with such a demand; and the defect, therefore, is in the demand, and the condition precedent has not been complied with. (6) A presentment of the draft for acceptance was not proved. The only semblance of evidence in the case as to the presentment of the draft- for acceptance, is that of the notary, Fanning. And the defendants both testified that it never was presented. It was necessary, to enable the plaintiff to recover in this action, under the contract in question, to prove a personal presentment of the draft to the defendants or some of them. It can not be pretended there is any evidence of such a- presentation. The referee refused to find one way or the other on the subject of personal presentment, on the express ground that he did not consider such finding material to the issue, (e) There was no cause of action in the plaintiff. In addition to what is stated in the case, it is deemed necessary simply to add that the drafts in question having been drawn and endorsed as -correct by the commissary agent under the contract in question, for the purpose of payment of the money due thereunder, and negotiated for value to, and taken by, "the parties to whom they were so negotiated on the faith thereof, the transferees were assignees of the plaintiff’s rights and interests, pro lardo, under the contract (Hall v. The City of Buffalo, 1 Keyes, 193, 198, ;and 300; Morton v. Nailor, 1 Hill, 583; Young v. Wardens, 61 Barb. 489; Shuttleworth v. Bruce, 7 Rob. 160; Lewis v. Berry, 64 Barb. 593; 25 N. Y. Rep. : N. Y. Rep. 179 ; 64 Barb. 593, 597, 598 ; 3 Bosw. 505 ; 46 N. Y. Rep. 660 ; 1 R. S. 768, §§ 6-9 ; 7 Hill, 577 ; 34 Barb. 630; 15 Johns. R. 6 ; 15 Abb 280; 17 Wend. 508; 40 Barb. 368). There is some evidence in the case tending to show that the -defendants promised to pay this draft, but this promise is unavailable to help the plaintiff for several reasons. (1). There is no allegation of any such promise in the complaint which is drawn upon the theory (and so ■expressly stated) that this draft was drawn in pursuance of the agreement, certified by the commissary agent, and that the defendants refused to accept, honor, or pay it, and damages are claimed by reason of such failure. (2). The promise, if made, was made after the draft had been presented for acceptance and payment •(so far as it wa s presented) and after it had got back in the plaintiff’s possession, and was in possession first of the witness Bold, and then of the witness Jacobs for collection, except, however, the promise to the witness Marcus Brunswick, which was in the summer of 1868. (3). It did not appear that at the time that promise was made by the two defendants by whom it was made that they or -either of them had any knowledge that the draft was drawn for less than the full amount of the monthly payment; but on the contrary they both testified and .they were not contradicted, that they had no knowledge on the subject; and (4). The promise, if made, had had no consideration, and was not binding, nor had it ever been relied on, and at best would have been but an item of evidence tending to show the correctness of the draft, whereas, its incorrectness was expressly proved and, indeed, admitted.

      Compton & Root, attorneys, and Elihu Root, of counsel for respondent, urged:
    I. The exception to the admission of Napier’s deposition should be overruled. His interests were fully protected by the limitation on the effect of the deposition as to him.
    II. The draft for three thousand five hundred and five dollars and ninety-seven cents, was drawn in accordance with the contract. The sole objection to the validity of the draft presented by the (defendants is, that it was not drawn for the full amount that was due. They say that the plaintiff was entitled to draw on the first of each month one draft only for the price of the beef delivered during the preceding month, and could not divide the amount into a number of different drafts. (1). The first obvious answer to this proposition is, that if it were of any force at all it would be not against the first draft, but the second, should it be presented. If the plaintiff had power to draw but one draft under the contract for April beef, this draft exhausted his power, and all subsequent drafts would be invalid—so much the better for the defendants; but the one draft he did draw while he had power would not be affected. (2). No such limitation is to be found in the contract. If they wished but one dralt to be drawn each month for the whole of the previous month’s beef, they should have provided for it in the contract, and agreed to pay by accepting a draft; oil the first of eacli month. (3). It is evident, from the circumstances of the parties, that their intention in contracting, was to provide for drafts to be used as the plaintiff might require. (4). It is evident from the acts of the parties that the construction of the contract now contended for by the defendants was not in the minds of either party before the commencement of this action The drawing of a draft for two thousand six hundred and one dollars and eighty-eight cents, March II, and six hundred and sixty dollars and twenty-five cents, on April 3, was totally irreconcilable with that construction. (5). If there be any question upon the face of the contract of the nature of the drafts authorized, the circumstances above mentioned must govern its construction in plaintiff’s favor (Ulster Co. Bank v. McFarlan, 3 Denio, 553, 564). (6). The provision for payment was on the defendant’s part, and must be construed most strongly against them (Ulster Co. Bank v. McFarlan, supra).

      Y. The defendants refused to accept the bill. The evidence of the defendants Charles and Louis Stettauer, that they did not remember to have seen this or any of the drafts except the two paid, weakened as it was by the evidence of Hatch and the subsequent admission of Louis Stettauer, was sufficient to justify the referee’s finding that the drafts had been presented both for acceptance and payment and both had been refused. The dissolution agreement, and the interviews with Dold, Jacobs and Brunswick establish the fact that for a long period before the commencement of this action the defendants knew tha.t the draft had been presented, had not been accepted, was held for payment and payment required of them ; and that defendants had promised to pay the draft in question which as against the demands by Dold and Jacob were sufficient, whether drafts were shown or not (Etheridge v. Ladd, 44 Barb. 69). It was, then, the defendants’ duty to pay the draft precisely as if they had accepted it (Williams v. Germain, 9 B. & C. 468, 477). The refusals to pay the draft more than twenty days after presentment and non-acceptance involved a refusal to accept, and adopted and made the defendants, the refusal of whatever person was in charge of their office when the presentment was made.
   By the Court.—Sedgwick, J.

I am of opinion, that the judgment should be affirmed, and proceed to examine the exceptions argued on this appeal by the appellant’s learned counsel,

A deposition de T)ene esse was offered in evidence. This had been taken after Louis Stettauer had answered, but before Charles S. Stettauer had appeared or answered. Counsel for Charles S. Stettauer objected to the admission at all of the deposition, on the ground that it was taken before Charles S. Stettauer had appeared. If this were so, the referee would not have been justified in preventing the plaintiff using it as testimony against Louis Stettauer. He, therefore, properly admitted it. At the same time he made a ruling which by misprinting, as I think, does not appear correctly in the printed book. - The meaning of the referee, was, I have no doubt, that, although admitted as against Louis Stettauer, the deposition would not affect Charles Stettauer, excepting as it would have affected him as partner of Louis, if Charles had not appeared at all. Perhaps as the case stood, under oar system of practice, this might have been hard to accomplish, yet the referee was correct in his ruling upon the objection made.

The defendants moved for a non-suit on the ground that it appeared on plaintiff's case, that when the draft in question was drawn, there had been actually delivered one thousand dollars worth of beef, at least, more than was included in the draft, which was for three thousand five hundred and five dollars and ninety-seven cents. The argument was, that by the contract, payment was to be made on the first, day of each month, in drafts at twenty days’ sight on C. S. Stettauer & Co.: that the plaintiff had no rightto draw, nor had the commissary to endorse, any draft except in accordance with this contract; that the defendants were not obliged to pay any drafts not drawn in accordance with the contract ; and that if the plaintiff could draw for any part less than the whole of the amount of beef delivered during the preceding month, there is no limit to the number of drafts that he might draw.

Undoubtedly, the form of the contract is the only basis of the obligation of the defendants to the plaintiff, but the defendants must rely upon the words as they are. The contract says that, after the beef has been delivered, ihe defendants promise that payment shall be made (of course by them), on the first day of such month in drafts, not draft. The defendants therefore can not rely on this provision as establishing their right to claim that they only promised to pay, if a single draft was presented which was for the exact amount of beef delivered in the preceding month. Nor does this provision establish as a condition precedent to the obligation to pay that there should be a demand for the payment of such a draft. The reasonable construction of the provision is, that the beef of one month is to be paid, not in cash at the end of the month, but by means of drafts drawn by plaintiff, the payment of which should become due on the twentieth of the following month. The defendants would not be subjected to annoyance from the amounts of the drafts being made very small. The number is not expressed, but the law construes the contract with reference to the transaction provided for by it.

As to another ground upon which a non-suit was asked, viz., that there was no evidence that the draft had ever been presented to the defendants for acceptance, the' testimony of the notary Fanning being insufficient from its peculiar character, and each of the defendants having testified that the draft was not presented, I am of opinion that the referee was at liberty to find, as he did, that the draft was presented upon the testimony showing that the defendants had repeatedly promised to pay the particular draft. Looking at this as mere circumstantial evidence, the referee had a right to infer that all had been done as to the draft, which was necessary to create a legal liability in reference to it, on the part of the defendants. There was no sort of evidence that the defendants promised under a mistake as to the facts, or from a benevolent motive, or a moral and not legal obligation. It is not necessary, therefore, to pass upon what would have been the effect of the notary’s evidence, if his had been the only testimony in this case.

Another ground upon which a non-suit was asked, was that it appeared that the cause of action was not in the plaintiff, because that at the time the draft was presented, it was owned by another than the plaintiff, who knew that it was drawn under the contract proven. This is supported by the argument, that the delivery of the draft was an assignment pro tanto of what was due to plaintiff under the contraer. This has no solid foundation. The draft was properly a bill of exchange only. It could operate as an assignment, only if on its face it appeared to be drawn on a particular fund in defendants’ hands. But it appeared in all the parts that, made it a bill, to be drawn on the defendants generally. If it were an assignment, its re-delivery to plaintiff, for a valuable consideration, made it a reassignment to him of what it originally transferred. Indeed, the plaintiff’s action was upon the original contract. He had delivered the beef, and defendant had not paid for it in the manner provided. The plaintiff proved that he had complied with all the conditions precedent that the contract implied should be performed on bis part. The damages suffered by plaintiff were at least the amount of the draft.

The proof that was given as to the delivery of beef, and the promises of the defendants to pay their draft was sufficient to sustain the referee’s finding as matter of fact, that the beef on account of which the draft was drawn, had actually been delivered.

There were other exceptions argued, but it is not necessary to examine them, as they related to other drafts in regard to which the referee’s findings and conclusions were in favor of defendants.

The judgment should be affirmed with costs.

Cubtis, J„, concurred.


text:
    ISAAC FAULKS, Plaintiff and Appellant, v. JACOB C. KAMP, Defendant and Respondent.
    Í. SUBSTANTIAL EIGHT.
    1. What obdebs do not affect it.

      a. Generally—Orders directing a pleading to be made more definite and certain do not.
    5. Specifically—An order directing a pleading to be made more definite and certain so that as between two causes of action contained therein—the one based on tbe affirmance of a certain contract, and the other on its rescission—it shall clearly appear upon which one the party pleading electa to proceed, does not.
    H. ELECTION OF CAUSES OF ACTION.
    1. Motion at special tebm to obtain.
    1. In a proper case may be obtained by a motion at special term to have the pleading made more definite and certain,

      a. Pboper case, what is.
    1. When the allegations of the pleading are, such as to leave it

      uncertain whether the party pleading puts himself on a cause of action founded, on the affirmance of a contract therein referred to. or on one founded on, a rescission of such contract he may be compelled to make Ms election by an order, made on a motion therefor, directing him to make the pleading more definite and certain, so that it shall clearly appear whether he elects to affirm or rescind.
    Before Curtis and Sedgwick, JJ„

      Decided August 3, 1875.
    Appeal from an order.
    Defendant moved at special term—
    “That plaintiff be required to make his complaint more definite and certain in this, to wit: That plaintiff be required to allege in his complaint, by apt and proper allegations, so that it shall clearly appear whether the said plaintiff elects to rescind and hold void the said contract of purchase and sale in the complaint set forth, or whether he elects to affirm the same and have a judgment for a specific performance thereof, or damages for a breach thereof.”
    After hearing the parties, the special term ordered “that the plaintiff be required within ten days from the date of this order to make the complaint in this action more definite and certain, so that it shall clearly appear whether the plaintiff elects to rescind and hold void the contract of purchase and sale, or whether lie elects to affirm the same and have a judgment for specific performance thereof, or damages in case specific performance can not be decreed, &c.”
    From this order the present appeal is taken by the plaintiff.
    The contents of the complaint sufficiently appear in the opinion.

      Charles N. Judson, attorney, and E. H. Baron, of counsel for appellant, urged:
    I. There is no such thing as a motion to compel a plaintiff to elect what he will claim from the facts alleged, and proved. A motion may in some cases be made to compel a plaintiff to elect which of two inconsistent counts or causes of action he will abide by, where he has set forth two separate and distinct causes of action in his complaint and that the other or others be stricken out.
    II. What the defendant complains of is, that the plaintiff asks for alternative relief; and the order as made amounts to a decision that a plaintiff can not ask for alternative relief. The contrary is too well settled to leave the question in doubt (Young v. Edwards, 11 How. 201 ; Stevenson v. Buxton, 8 Abb. 414 ; Stevenson v. Buxton, 15 Id. 352, 355 ; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357; N. Y. Ice Co. v. N. W. Ins. Co., 21 How. 295; Greason v. Ketaltes, 17 N. Y. 491, 492 ; Wells v. Yates, 44 Id. 525 ; Bidwell v. Astor, Mutual Ins. Co., 16 Id. 263; Barlow v. Scott, 24 Id. 40 ; Davis v. Morris, 36 Id. 571, 572).
    III. A plaintiff may even go further and claim and have allowed him both legal and equitable relief in the same action (Bidwell v. Astor Ins. Co., 16 N. Y. 263 ; Phillips v. Gorham, 17 Id. 270, 274 ; Wells v. Yates, 44 Id. 525; 56 Id. 12, 20, 21 ; Bradley v. Aldrich, 40 Id. 512; Davis v. Morris, 36 Id. 572).
    IV. The prayer for relief is not important if the defendant answers; and if he has no defense, it certainly is not (Code, § 275 ; Marquet v. Marquet, 12 N. Y. 341 ; Jones v. Butler, 20 How. 189, 191). The order, then, restricting the plaintiff to a particular or single claim for relief, and requiring him to state in his complaint that he will not ask for any other, is more than can be required of a plaintiff. It is depriving him of substantial, rights and should be reversed.
    V. Section 160 of the Code, under which this motion is made, does not authorize such a motion. That merely provides that, “ when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made more definite and certain by amendment.” This is no such case. There is no pretense that the allegations in the complaint are indefinite or uncertain. It is the prayer for relief that is complained of; and it is notpretended that that is indefinite or uncertain, but only that there is too much of it, or too many of them. The defendant treats the prayer for relief as a cause of action, and then attempts to make this motion answer for a demurrer to it as for a misjoinder. That is new practice not provided for by the Code.
    VI. The complaint, as required by section 142 of the Code, contains a plain and concise statement of facts constituting a cause of action.- The plaintiff claims, from the facts alleged, to have a contract reformed, and damages for the breach or failure to give a complete title, or that if the defendant is unable yet to give a complete title, then that the contract be annulled and canceled, and the plaintiff recover his damages for the fraud and failure of the defendant. This makes but a single cause of action (Garner v. Wright, 28 How. 92, 94: Gooding v. McAllister, 9 Id. 123 ; Caboon v. Bank of Utica, 7 N. Y. 486; Jeroliman v. Cohen, 1 Duer, 629). And it is a cause in equity, whether it is to reform the agreement and for damages (Wells v. Yates, 44 N. Y. 531, 532), or whether it is to have the agreement canceled and the plaintiff compensated in damages (Story's Equity Jurisprudence, § 692, 695). And even in such a case, where the court gives no equitable relief, the court of equity may retain the canse, and give compensation in damages (N. Y. Ice Co., v. N. W. Ins. Co., 23 N. Y. 357, 359 ; Barlow v. Scott, 24 Id. 40; 56 Id. 12, 20, 21).

      Edwin S. Babcock, attorney, and Freeman J. Fithian, of counsel for respondent, urged :
    I. An appeal does not lie from this order, because it does not -come within either of the subdivisions of section 349 of the Code. The order does not involve the “ merits of the action” or “any part thereof,” or affect a “substantial right.” It is a mere matter as to time and “form of procedure,” and in no way affects any right or merit of the plaintiff (People v. N. Y. Central R. R. Co., 29 N. Y. Rep. 418; Talman v. Hinman, 10 How. .89 ; Field v. Steward, 2 Sween. 193).
    II. But if appealable the order should be affirmed, -(1). The complaint in effect states two distinct causes of action, by stating a set of facts or transactions on which either of those two causes of action may be predicated ; and these two causes of action are inconsistent and •could not be properly united in the same action. And If they were separately stated defendant could demur •for that cause (Smith v. Hallock, 8 How. 73 ; Hulce v. Thompson, 9 Id. 113 ; Colwell v. N. Y. & E. R. R. Co., 9 Id. 312.; Adams v. Bissell, 28 Barb. 382). The case of Hall v. Hall (38 How. 97), is not applicable, because in that case the pleadings were so drawn as to give the defendant a right to elect whether or not there should be a partition. (2). The principle upon which the order appealed from rests is fully set forth in the following •authorities, which is, in substance, that a plaintiff shall sot be permitted to occupy an uncertain and equivocal position in court, or prefer inconsistent and contradictory claims in the same matter (Morris v. Rexford, 18 N. Y. 552; Bank of Beloit v. Beale, 34 Id. 473 ; Seymour v. Van Curen, 18 How. 94 ; Maxwell v. Farnam, 7 Id. 236; Chappel v. Skinner, 6 Id. 338).
   By the Court.—Sedgwick, J.

I am of opinion that the order of the court affected no substantial right •of the plaintiff. It has been several times decided in this court, that when it appears that the court below has ordered the party to make pleadings more certain and definite, no substantial right is involved. In this case the complaint alleges facts, in such a way that the plaintiff is enabled to claim that he had set out a cause of action on a contract existing at the beginning of the action. There are also in the complaint other allegations which equally enable the plaintiff to claim that the complaint notified the defendant that the plaintiff’s cause of action was placed upon the avoidance by the plaintiff of the contract because of the defendant’s fraud. If this is not correct, it is not, only, because the complaint has omitted to aver some fact which is necessary to a cause of action, upon the contract, or for the avoidance of the contract. Whether the plaintiff has a cause of action upon either set of allegations can be examined only upon demurrer. A cause of action upon the contract is not consistent with a cause of action upon the avoidance of the contract. This being the contract, the order of the court directed the plaintiff* to notify the defendant by an amendment of the complaint upon which cause of action the action was brought. Ho right of substance would be affected by the plaintiff doing what was required of him. If he did not do it at the beginning, the election would have to be made at some stage of the case. So far as the plaintiff was concerned, it was matter of form. So far as defendant was concerned, he had a right that the complaint should clearly express the cause of action— of course the order did not limit the plaintiff in asking any relief he saw fit to claim upon the cause of action he relied on.

But if a substantial right of plaintiff was affected, I think the order was correct. The complaint taken as a whole, made it evident that the plaintiff put himself upon the contract and the avoidance of the contract, leaving it uncertain upon which the action was to proceed. It could not proceed on both. The defendant had a strict right to know, at the start, what case the plaintiff meant to go upon.

The order should be affirmed, with ten dollars costs and disbursements.

Curtis, J., concurred.


text:
    JOSEPH W. FISKE, Plaintiff and Respondent, v. CHARLES F. ALLEN, Defendant and Appellant.
    I. CREDIT, TO WHOM GIVEN.
    t. Charge and proof as to issue on.

      a. Charge. A charge that if defendant did or said anything from which plaintiff had a right to suppose that the sale was being made to him and not upon the responsibility of any other party, he would be himself liable, without adding the proviso, “if the plaintiff meant to sell to him,” or some phrase of similar import, does not constitute error.
    This proviso is'implied in the words of the charge; for 1. Plaintiff could have no right to suppose that a sale was being made to defendant unless he had done or said what was necessary to make himself a party thereto.

      b. Proof.
    1. The original order being in writing purporting on its face to come from a person other than the defendant, and by that person written in the order book, and it being brought out-on plaintiff’s cross-examination that the sale was entered in the other books as being made to such other person, the admission of evidence on tlie re-direct, that the entries in the other books were taken from the entry in the order-book, is not canse for reversal. It did not injure the defendant..
    2. Where the defendant introduces proof that by a contract, between him and the person to whom the plaintiff charged the goods, lie was bound to pay such pert on for the goods, it is not error to allow the plaintiff to prove that defendant has not paid such person.
    1. This is an application of the principle that proof otherwise immaterial and improper, may by the course of the trial become material and proper.

    8. Entries in books of account making charges against a particular person, a,re not conclusive evidence that the credit was given to such person.
    Before Cttbtis and Sedgwick, JJ.

      Decided August 3, 1875.
    Appeal from judgment entered on verdict.
    One Chamberlain had a contract with the defendant in which it was provided, that Chamberlain should build a house for the defendant, furnishing the materials therefor, among other things, iron work called cresting. By the terms of the contract, Chamberlain would be repaid for this cresting in the last instalment provided to be paid by the defendant. Before the contract was completed the defendant and Chamberlain saw the plaintiff, who was a dealer in the kind, of iron work referred to, at his office. The plaintiff testified to the conversation then had, and gave such evidence as to it, that the jury was entitled to find that the defendant then purchased some cresting from the plaintiff. There were many facts proved, tending to show that the plaintiff did not sell to the defendant, but to Chamberlain, and that the defendant only pointed out certain crestings as satisfactory to him, e.g. that the plaintiff knew that the contract was pending; that the original order upon the books of plaintiff was made by Chamberlain in his own name, and the transaction was thereafter entered in the name of Chamberlain ; that the price was fixed after a discount usually given by plaintiff to contractors like Chamberlain, but not to dealers like the defendant. The interview with the defendant was two or three days before the order was written in the plaintiff’s books. There was, on the other hand, some evidence given, tending to show that an arrangement liad been made by the defendant with Chamberlain, under which the former was to pay directly for materials put by the latter into the house, and the money paid was to be deducted from the' instalments under the contract.
    The action is brought for the price alleged to have been agreed to be paid by the defendant for the materials. The plaintiff had a verdict, and the defendant appeals.
    Arnoux, Ritch, & Woodford, attorneys, and Wm. Henry Arnoux, of counsel for appellant.

      Nelson Smith, attorney, and of counsel for respondent.
   By the Court.—Sedgwick, J.

I proceed to examine the exceptions argued by the learned counsel for appellant:

He urges that the judge erred when he charged that “if the defendant did or said anythingfrom which Mr. Fiske had a right to suppose that the sale was being made to Mm, and not upon Chamberlain’s responsibility he would be himself liable,” and the argument is tiiat if the defendant had gone so far, it would, not make him liable, unless, also, the plaintiff Fiske meant to sell to Allen. Of course the learned judge would not intentionally say anything which implied there could be a sale to the defendant, apart from the plaintiff’s participation in the contract for the sale. At the least, it is taken for granted through the charge, that there can not be a buyer unless there is also a seller. And the language of this part of the charge implies this, for Mr. Fiske- the plaintiff could under no circumstances have a right to suppose, from what the defendant said, that the sale was being made to-the defendant, when he knew that he had not done or said what was necessary to make him a party to the sale. The exception on this point should not be sustained.

An exception was taken to the plaintiff being; asked, 61 How the business of his store was done, from which it will appear3 how it came to be charged to-Chamberlain instead of Allen.” The answer to this question in connection with the question, informed the-jury that the entries in the various books after entry of the order was made in the order-book were taken from the order-book. This did not injure the defendant. His argument was as strong upon the fact of the order itself, and the jury should have known that the other entries were not original.

The defendant excepted to the admission by the court, of a question put to Chamberlain, viz. s 66Has the defendant ever paid you for the cresting?” I do not think this should canse a reversal of the judgment. The defendant had chosen on cross-examination of Chamberlain, to ask if he was not bound under the contract with the defendant to pat in this cresting or a cresting. The answer was yes. The existence of this-contract, and the obligation of the- parties under it, had in the course the case had taken become circumstances which the jury were at liberty to consider in ascertaining whether as a fact the defendant had bought of the plaintiff, although it was conceded by both parties that the existence of the contract was not inconsistent with the defendant’s making a purchase from the plaintiff. When the defendant had thus shown that apparently, so far as the evidence then disclosed, he was bound to pay Mr. Chamberlain, it was another circumstance of importance, greater or less, that the defendant had not paid his liability.

Finally, I think the learned counsel is in error in his arguments based upon the proposition that the ■entries in the books of the plaintiff, showing that the sale was in fact made to Chamberlain, were conclusive evidence that the sale was in fact so made. First. The transaction occurred several days before the entries were made, and the defendant’s obligation had, if at all, -come into existence before the entries. Second. The entry was made by Chamberlain himself, and there was no conclusive evidence that the plaintiff delivered the cresting upon that order, and not upon his dealings with the defendant personally.

The substance of the whole case was disposed of fully and fairly by the judge, who instructed the jury to ascertain the facts of the interview between the plaintiff and defendant, and gave them all the rules of law that should be applied to the facts.

Judgment affirmed, with costs.

Curtis, J., concurred.


text:
    THE TRIBUNE ASSOCIATION, Plaintiff and Respondent, v. A. BURDETTE SMITH, Defendant and Appellant.
    I. APPEAL—WHEN IT DOES NOT LIE.
    1. An ORDER GRANTING RELIEF ON TERMS.
    1. An appeal taken from that part which imposes the terms will not lie.
    a. Improper terms imposed, the remedy is by appeal from the order as a whole.
    1. Unless, perhaps, the terms are separated into parts, some of which may be reversed without affecting the others, in which case it may be that such parts as are claimed to he improper, may be reviewed on appeal from them only, and if found erroneous, reversed.
    II. APPEAL.—POWER OF GENERAL TERM.
    1. On an appeal from an order in the discretion of the COURT BELOW.
    1. It can not act as if it had the power to entertain the motion originally.

      a. Whatever relief, other than the bare reversal or affirmance, either party may desire, must be sought for and obtained at the special term.

    Before Sedgwick and Van Vorst, JJ„

      Decided August 3, 1875.
    Appeal from order.
    The order appealed from was, ‘ ‘ that the defendant have leave to amend his answer in this action, pursu- . ant to said proposed amended answer, on payment of plaintiff's costs and disbursements since the notice of trial, to be adjusted by the clerk.”
    The defendant appeals from so much of the order, c< as makes it a condition of granting the defendant leave to amend bis answer, the payment by the defendant of the plaintiff’s costs and disbursements since notice of the trial.”

      Rodman & Adams, attorneys; and Charles D. Adams, of counsel for respondent.

      Walter M. Rosenblatt, attorney, and of counsel for appellant.
   By the Court.—Sedgwick, J.

If that part of the order which is appealed from be reversed, the order will then allow the defendant to serve an amended answer, without the defendant’s paying any costs. The condition is so framed that.it can not be separated into parts, some of which may be reversed. The whole must be reversed or affirmed. If we should reverse, leaving an order absolute that the defendant may serve an amended answer, injustice would be done to the plaintiff, as certainly as it has been done to the defendant, if his argument on that point is correct. • The alternative would be that on this appeal we entertain the motion anew, with the possible result of denying it altogether, or granting it upon such terms as our discretion should suggest. Although the general term, may entertain an appeal from an order that is within the discretion of the court appealed from, that gives no right to act upon an appeal as if the appellate court had power to entertain the motion originally. Whatever affirmative relief the defendant is originally entitled to, he must obtain it in the court which by law has power to hear the motion and to adjust the terms.

The part of the order appealed from can not be taken from its relation to the rest of the order. It is a mere condition. It is not an independent direction. It by itself can not be reviewed. Its meaning is that the' court considered that the motion should be denied, unless the conditions were imposed. If the court had denied entirely leave to amend, we could not say that it was an improper use of discretion. If the appellant is right in the argument that more costs were imposed, than were sufficient to indemnify the plaintiff for the change of the issue, his remedy was to appeal from the order as a whole; so that in case of reversal, the court below, on a rehearing, could settle the proper terms.

For these reasons I am of opinion the order should be affirmed, with costs.

Van Vorst, J., concurred.


text:
    JAMES H. CONANT, Plaintiff, v. THE NATIONAL ICE COMPANY OF NEW YORK, Defendant.

      L CORPORATIONS—CONTRACTS BETWEEN.
    1. Assumption by one cobpobation (a.) op all the debts, liabilities, AND OBLIGATIONS OP (B.) ANOTHEB.
    1. Non-liaMlity of the assuming corporation,.

    1. A. is not bound to perform a contract made by B. to trans fer shares of its (B.’s) stock try transferring an equal number , of shares of its (A.’s) stock; nor is A. in any event liable as and for damages for the breach of such contract made by B., or otherwise, in the value of an equal number of shares of its (A’s.) stock.
    a. This, although the consideration for such assumption was the transfer by B. to A. of all the property, rights, and privileges of B.

      b. And although the stock of the old company was to be delivered in payment for services rendered in procuring some of the property so transferred.

      c. And although the individuals who organized the new company were the same who organized the old one, the offices of the one the same as those of the other, and filled by the same persons; the seal of the one the same as the seal of the other, and the two corporations in all other respects alike, and all the property of the old company was transferred to the new one.
    Before Curtis and Sedgwick, JJ,

      Decided August 3, 1875.
    Motion by defendant for a new trial under § 268 of the Code.
    The action was tried at special term. The judge found as part of the facts that a corporation called The National Ice Company, in consideration of services performed by the plaintiff for it, in obtaining leases and ice privileges, and in consideration of the plaintiff surrendering to it fifteen hundred shares of its stock, held by him, agreed on January 8, 1867, to deliver to the plaintiff four hundred shares of the stock of that company; that on February 2, 1867, the persons interested in said corporation formed the corporation, which is the defendant; that the defendant assumed all the liabilities, debts, and obligations of the said National Ice Company, and took possession of all the property, rights, and privileges of such corporation „ including all the leases and ice privileges procured for it by the plaintiff, and assumed the liability of the National Ice Company to deliver to the plaintiff four hundred shares of its stock. From these and other facts found by the learned judge, he found, as the law of the case, that the plaintiff was entitled to the delivery of four hundred shares of the stock of the defendant-, if delivery could be made by defendant; that if such delivery could not be made, the plaintiff was entitled to recover the value of the stock; that the plaintiff was entitled, to recover all dividends declared and paid on said stock since February 7, 1867, and interest thereon ; and that the plaintiff was entitled to an accounting to ascertain the amount of the dividend.

      Sewell & Pierce, attorneys; and Robert Sewell, of counsel for the defendant.

      Daniel B. Childs, attorney; and Joseph H. Choate, of counsel for the plaintiff.
   By the Court.—Sedgwick, J.

If we look to the findings of fact made by the learned judge, or to the testimony in the case, we see that the defendant made no contract of its own with the plaintiff to deliver stock to him. At best for plaintiff, the defendant assumed the liability of another corporation upon a contract made by the other corporation with the plaintiff, to deliver its stock to him. Manifestly the plaintiff’s rights relate only to that stock. The name of the other company was the National Ice Company. But the plaintiff here.obtained a judgment which is based upon his having a right to the stock of the present defendant. As there was no evidence of any contract, in relation to the defendant’s stock, I think there should be a new trial.

If the individuals who organized the defendant were the same who organized the National Ice Company ; if that company transferred all its property to the defendant, and the defendant had no other property ; if the offices were the same, and filled by the same persons ; if the seal of one was used by the other as its seal; if in all other respects the two companies were alike, the National Ice Company would maintain its existence, and its capital stock could not be the capital stock of the defendant.

If the first company has performed and delivered its stock to the plaintiff, I think there would be no claim, that he, because of his having the stock, would be entitled to the same number of shares in the defendant’s stock. But now he is not entitled to more than the legal rights that arise to him from an executory contract to deliver that stock.

This result makes it unnecessary to examine whether the present action is one in equity or at law, and in what way the parties’ rights are affected by its being the one or the other. In the new trial granted, the parties can take positions so definite, that there will be no doubt on this point. If we are correct in the result, the other exceptions taken in the case present questions of law that on this appeal have no practical importance, and we do not examine, or decide, them.

There should be a new trial, with costs to defendant to abide the event of the action.

Curtis, J., concurred.


author: By the Court.—Freedman, J.

text:
    IGNACIO F. ALFARO, Plaintiff and Respondent, v. STRATFORD P. DAVIDSON and EDWARD R. JONES, Defendants and Appellants.
    pleadings.
    A complaint that states the employment of the plaintiff by the defendants as their agent to do and perform certain work and labor and service for them, “upon certain conditions and terms, more fully set out in a certain memorandum of agreement, which is hereunto annexed, marked ‘Exhibit A.,’ and forms part of this complaint ” (and a copy of such agreement was so annexed), does in fact set forth the whole of said agreement, and such a complaint is not objectionable on the ground of insufficiency.
    That an averment was not made in the body of the complaint, to the effect, that the whole of the agreement was in writing, is wholly immaterial. Section 159 of the Code, relaxes the strictness of former rules in regard to pleadings when it declares, that in the construction of a pleading for the purpose of determining its effect, “ its allegations shall be liberally construed with a view of substantial justice between the parties,” and with such liberal construction, this complaint will be deemed sufficient in all respects, and contains ■every element necessary to state a cause of action on the part of plaintiff for a breach of said agreement.

      DAMAGES, UPON A BREACH OF A CONTRACT.
    The plaintiff is entitled to recover such as necessarily flow therefrom. These are general damages and need not be expressly detailed in the complaint, but are recoverable under the general conclusion (Chitty on Contracts, 985, and cases cited, edition of 1860).
    To recover special damages, they must be set forth or detailed specially in the complaint. Upon proof of a breach of a valid contract, the plaintiff is entitled to recover some damages, although it may be difficult to ascertain the same, and they may be merely nominal (Chitty on Pleadings, vol. 1, 338 ; Sedgwick on Damages; Devendorf v. Wert, 42 Barb. 227).
    REVIEW ON APPEAL.
    On an appeal from the judgment only, the only questions that can be reviewed are questions of law (Parker v. Jervis, 3 Keyes, 271; Magee v. Osborn, 32 IV. T. 669). An alleged excess of damages found by a jury, and an exception to the decision of a motion for a new trial upon the minutes of the court, can not be considered or reviewed upon such an appeal.
    EVIDENCE OF DAMAGES.
    Past profits may be proved as a basis for the estimation of probable profits if the contract had been fulfilled, and upon the same principle (as in the case at bar), facts and circumstances occurring after the breach and to the expiration of the time provided for in the agreement, which show or tend to show the profits that would have necessarily accrued under the agreement if kept, or the losses that were occasioned by its breach, may be proved.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from a judgment entered upon the verdict of a jury.
    The points discussed and considered upon the appeal appear fully in the opinion of the court.

      S. F. Cowdrey, counsel for appellants.

      F. R. Coudert, counsel for respondent.
   By the Court.—Freedman, J.

Defendant’s objections to the sufficiency of the complaint as to the validity of the agreement between the parties are not well founded. The complaint states the employment of the plaintiff by the defendants as their agent to do and perform certain work, labor, and services for them, “upon certain conditions and terms, more fully set out in a certain memorandum of agreement which is hereto annexed, marked, ‘Exhibit A,’ and forms part of this complaint.’ ’ A full copy of the agreement thus referred to was in point of fact annexed to the complaint. The latter, therefore, sets forth the whole of the agreement, and no reason can be perceived why the same should not be held to be a valid agreement. That it is not expressly averred in the body of the complaint that the whole of the agreement was in writing, is utterly immaterial. The strictness formerly prevailing in regard to pleadings has been relaxed under the Code. Section 159 provides, that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.

In all respects the complaint contains every element necessary to state a cause of action founded upon plaintiff’s wrongful discharge before the expiration of his term of service, and plaintiff having proved a clear violation of the agreement by the defendants, it would have been error to dismiss his complaint. When there is a valid contract and it has been broken, the plaintiff is entitled to recover such damages as necessarily ensue from the non-performance or breach. These are general damages, and they need not be expressly detailed in the complaint, but are recoverable under the common conclusion (Chitty on Contracts, 985, edition of 1860, and cases cited).

If special damages are claimed, they must be stated in the complaint to prevent surprise on the trial, and so as to show that the plaintiff is entitled to them.

But upon the breach of a valid contract the plaintiff is entitled to some damages, although it may be difficult to ascertain the amount, and they may be nominal only (Chitty on Pleadings, vol. 1, 338; Sedgwick on Measure of Damages ; Devendorf v. West, 43 Barb. 237).

The alleged excessiveness of the damages given by the jury can not be considered on the present appeal, the same being from the judgment only. The only questions that can be reviewed on such an appeal, are questions of law (Parker v. Jervis, 3 Keyes, 271; Magee v. Osborn, 33 N. Y. 669).

The exception to the decision of the motion for a new trial upon the minutes of the court, is also unavailable upon the appeal from the judgment. The only mode for reviewing such decision is by an appeal from the order (Gregg v. Howe, 37 N. Y. Sup'r Ct. R. 434).

Moreover the appellants have already been heard on their separate appeal from such order and the order has been affirmed.

These views substantially dispose of all the exceptions taken by the defendants, except those which relate to the admission of evidence showing the amount of orders obtained by the plaintiff, and those which arise upon or in connection with the charge of the court ón the question of damages.

The evidence as to the amount of the orders obtained by the plaintiff, and executed by defendants, whilst the plaintiff was in the employ of the defendants, was introduced to lay a foundation upon which plaintiff’s general damages could be computed. In his complaint the plaintiff did not limit himself to those orders which he succeeded in obtaining after he had been expelled from the office which afforded him most of his facilities for procuring orders by reason of its immediate vicinity to the stock exchange. He expressly averred, as the gravamen of his action, “that while the said agreement was still in full force and effect, and without any justifiable cause, the said defendants discharged this plaintiff from, their employment, and expelled him from the office which he had held at their instance and request, and refused to recognize his authority to act for them under such agreement, or to repay said advances. That at the time of the breach aforesaid of the said agreement, the said plaintiff was doing a large and profitable business for the said defendants, and earning large commissions for himself therein.”

As the plaintiff, therefore, was entitled to recover, as general damages, damages for the loss of profits which he would have realized, the evidence was admissible under the rule which allows past profits to be proved as a basis for the estimation of probable profits. Upon the same principle it was also competent to show the orders actually received by the plaintiff- subsequent to his discharge and up to the time of the expiration of the agreement, and the disadvantages under which they were obtained. The proof upon this point was not objected to as incompetent, but defendants endeavored to prevent its introduction by raising other objections, which were clearly and palpably untenable.

Now as to the business done by plaintiff prior to his discharge, the court charged that there was no proof that that business would have continued at that average ; that it might have been less and it might have been more, and "that, therefore, it was for the jury to say, as sensible men, what amount of business the plaintiff would have done, if he had not been discharged.

As to the orders procured after his discharge, the jury were instructed that the plaintiff could not recover commissions on them as such, but that they might be considered in estimating what amount of business the plaintiff would have done, if he had been allowed to continue at the place provided for by the agreement.

There was no error in these instructions, nor in the refusal to charge otherwise, and the jury were thereby limited as to the effect to be given to the proof..

There being no error in the rulings below, the judgment should be affirmed, with costs.

Speir, J., concurred.


text:
    WILLIAM P. GLENNEY, Plaintiff and Respondent v. WORLD MUTUAL LIFE INSURANCE COMPANY AND OTHERS, Defendants and Appellants.
    EXAMINATION OF PARTIES TO THE ACTION UNDER § 391 OF THE CODE AND RULE 21 OF THE SUPREME COURT.
    This examination may be held immediately after the service of the summons. Under this statute there is no limit to the time when the examination may take place, after the commencement of the action.
    The language of Rule 21 does not necessarily call for any other construction. Former decisions of this court referred to and approved in the decision of the case at bar (McVickar v. Greenleaf, 4 Rob. 657; Winston v. English, 35 N. Y. Superior Ct. R. 512).
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from an order of the special term denying a motion to vacate an order made for the examination of the defendants before trial and after the service of a summons for relief, and before any pleading had been made in said action.
    This suit was commenced by the service of a summons only for relief.

      Immediately after its commencement, the plaintiff, on an affidavit showing the nature and object of the suit, and the materiality of the examination of several of the defendants as parties before trial, applied for the examination of the defendants, Daniel J. Noyes, Henry W. Baldwin, and Jeremiah H. Stedwell. An order to this effect was obtained, and summons issued. Upon the return day of the order the defendants therein named appeared, and moved to vacate the order of examination, upon the ground that it could not legally be had until after issue joined. This motion was denied, and the said defendants appealed.

      F. N. Bangs, of counsel for appellants.

      Robert Sewell, of counsel for respondent.
   By the Court.—Freedman, J.

The affidavit upon .which the order for the examination of the defendants was made, fully established the good faith of the application and the materiality of the examination sought. No counter affidavit was presented. If, therefore, the learned judge below had the power to make such an order as was made, he was justified in holding that the plaintiff had complied with all the requirements of the -code, and the rules and practice of the court.

It is insisted, however, that the court never had, or that, if it had, the court since the amendment of the 21st rule by the convention of judges in 1874, no longer possesses the power to order an examination of a party under section 391 of the Code before issue joined.

In Winston v. English (44 How. 398) which was an application to vacate an order made by myself for the examination of the plaintiff after service of complaint to enable defendant to prepare his answer (a prior order to the same effect made by Chief Justice Barbour, before service of complaint, having been previously vacated by him), I fully examined the coarse of legislation and the practice of the courts concerning applications for discovery and the examination of adverse parties. I there pointed out that prior to 1870, no rule-existed concerning applications for the examination of parties before trial under section 391 of the Code, and that in the absence of such a rule the practice of several of the courts differed. While the supreme court had held that under that section a party can not be examined before issue joined (Bell Richmond, 50 Barb. 571) the superior court had maintained that, in case of necessity, the examination may be had immediately after the service of the summons (McVicker v. Greenleaf, 4 Rob. 657). I also showed that this conflict of judicial opinion continued to éxist until the passage of the 21st rule adopted by the convention of judges, which met pursuant to the requirements of chapter 408 of the Laws of 1870.

That rule was as follows : “ The application for an examination under § 391 of the Code, shall be upon an affidavit disclosing the nature of the discovery sought to enable the party to frame his complaint or answer, or to prove his case or defense upon the trial, and how the-same is material in aid of the prosecution or defense.”

In discussing the effect of this rule in Winston v. English (35 N. Y. Sup'rt Ct. R. 512, on appeal from the order hereinbefore referred to as having been made by Chief Justice Barbour), Moeell, J., delivering the opinion of the court, says:

“The rule, it will be seen, provides, first, for the examination of the defendant to enable the plaintiff to frame his complaint; second, of the plaintiff’to enable the defendant to frame his answer; and third, of either party after issue.
“The rule follows in effect the construction by this court of the 391st section of the Code, in McVickar v* Greenleaf, so far as it permitted the examination before issue; but by necessary intendment limits the right to the purposes specified.
“The limit thus put upon the examination, namely,, for a plaintiff to frame his complaint, or for a defendant to prepare his answer, is in accordance with the true intent of the statute, and does not in my judgment conflict with any of its provisions.”

The convention of judges which met in the fall of the year 1874, amended the rule so as to read as follows : ‘ The appli cation for an examination under § 391 of the Code, shall be upon an affidavit disclosing the nature of the discovery sought to enable the party to prove his case, or defense, on the trial, and how the same is material in aid of the prosecution or defense.”

In consequence of this amendment, it is claimed by the appellant, the authority at all events no longer exists to compel an examination before issue joined. But the answer to this proposition is, first, that the language of the rule as amended does not necessarily call for such a construction; and secondly, that, even if it did, the rule itself would be inoperative, in case the authority exists independently of the rule. In case of such independent existence, the constitution would not sanction a delegation of power to a convention of judges to change the statutory law of the state.

Unfortunately for the appellant, this court has steadily maintained by an unbroken series of decisions, that the authority is conferred by the Code, and that the true intent and meaning of section 391 is, that, in case of necessity, the examination may be had immediately after the service of the summons. McVickar v. Greenleaf (4 Rob. 657) was decided by the general term in the year 1865; and in delivering the unanimous opinion of the court on that occasion, Mr. Justice Monei/l said : “ As the statute now stands, there is not, in terms, any limit to the time when the examination may be taken, nor does there seem to be any reason for a limitation. . . . The right to examine the adverse party arises, in my opinion, immediately on the commencement of the suit, and not merely after issue joined.”

This is conclusive of the question involved in the present appeal, and I am, therefore, not at liberty to treat it as an open one in this court.

The order should be affirmed, with costs.

Speir, J., concurred.


text:
    JOHN H. HARNETT AND OTHERS, Plaintiffs and Respondents, v. ANDREW J. GARVEY, Defendant and Appellant.
    In an appeal from a judgment only, the refusal of the court (in consequence of plaintiff’s objection thereto) to allow the jury to take with them, on retirement, for consultation, three certain bills which had been received in evidence, is not properly reviewable by the general term.
    The refusal was a matter resting solely within the discretion of the court.
    Before Freedman and Speir, JJ.

      Decided December 6, 1875.
    Appeal from judgment entered upon verdict of jury.

      F. G. Smedley, of counsel for appellant.

      A. H. Dailey, of counsel for respondents.
   By the Court.—Freedman, J.

The questions raised "by the appellant arise, with one exception, upon exceptions taken in the course of the trial to the admission of evidence. After a careful examination of the whole case, I am unable to perceive that any error was committed in that respect.

The only other complaint relates to the refusal of the court, in consequence of plaintiffs objection, to allow the jury to take with them three certain bills which had been put in evidence. This was a matter resting in the discretion of the court, and the exercise of such discretion is not properly reviewable on an appeal from the judgment merely. No reason was given by defendant’s counsel why the bills should be handed to the jury, nor does it appear that the defendant has been prejudiced in any way by such refusal.

The judgment should be affirmed, with costs.

Speir, J., concurred.