author: By the Court.—Sanford, J.

text:
    JOHN HARRIS and RICHARD N. JONES, Plaintiffs and Respondents, v. CHARLES P. BURDETT and SAMUEL G. POND, Defendants and Appellants.
    I. ESTOPPEL BT PEG ORB.

    1. Title to property, effect on proceedings springing out of.
    1. A judgment necessarily founded on the ground that a party to the action in which it is rendered, is, by certain acts done by him, estopped from setting up the invalidity of a sale of certain property, will estop such party in any action brought by him against the parties to the action in which such judgment was rendered, or their privies, in which the validity of such sale is involved, from setting up its invalidity.

    (a) Privy.—One who holds money or property for a party to such action, whose right theo'eto depends on the validity of such sale, stands in privity to such party as to the money and property so held, so far as to enable him to rely on such judgment as estopping the party against whom the same was rendered from setting up the invalidity of the sale, in an action brought by him against such third person, for the recovery of such money or property.
    H. Libel in admiralty against vessel pok repairs and supplies.
    1. LAWFUL POSSESSION of vessel by those ordering the repairs and supplies, at the time of the furnishing thereof, ESSENTIAL to support the libel.
    (a) Privy to libellant.—One who holds freight money payable to the libellant by the terms of a charter-party made by those claimed to be in lawful possession of the vessel, stands in privity to the libellant.
    HI. APPLICATION OP ABOVE PRINCIPLES.
    1>. Plaintiffs were the owners of the vessel Sarah Harris, and sent her on a voyage to Montevideo. Her captain, alleging she had been disabled by stress of weather, put into Porto-Rico, where she was condemned, and sold to Cochran and Fullmore. After the sale, James D. and Wm. C. Lamb made advances to the purchasers for repairs and supplies to the vessel. She was then chartered by Cochran, as master and part-owner, to Lamb, Storer and Gad, for a voyage to New York, with a cargo of molasses consigned to the defendants. The vessel was consigned to Whitney & Co. By the charter-party the freight was payable to the order of ■Lamb & Co., of St. Thomas, as security for cash advances, and of a draft of said Cochran in case of its protest or non-payment. On the arrival of the vessel at the port of New York, plaintiffs filed a libel against her, and said Cochran and Fulmore, the purchasers at Porto-Rico, alleging in the libel that Cochran and Fulmore wrongfully withheld the vessel, on an alleged ground of title depending on the alleged sale at St. Thomas, which sale the libel alleged to have been made collusively and in fraud of the libellants, and to be void. Upon the libel a decree was entered by consent adjudging that the possession of the vessel be delivered to the libellants.
    Thereafter James D. 'and Wm. C. Lamb libelled the vessel for advances made to Cochran as master, at his request, for repairing and refitting said vessel, for the purpose of enabling him to proceed to sea with safety. John Harris, in behalf of himself and the other plaintiffs in this action, intervened, setting up. in substance that a great portion of the claimed advances were not for necessary repairs and supplies ; that the condemnation and sale at Porto-Rico were fraudulent and void ; that the vessel had arrived at New York, carrying a freight of $1,800, which was paid to the defendants herein, as the agents, and for account of the libellant; that a decree had been made on the libel theretofore filed by the intervenor adjudging that the possession of the vessel be delivered to the intervenor; and claiming that the freight money be paid over to the intervenor, that by reason of the matters alleged libellant had no lien, and particularly that by reason of the said decree .in favor of the intervenor. Upon this libel a decree was made whereby it was decreed that plaintiff recover against said vessel a specified sum, and that she be condemned therefor.

      Decided November 5, 1877.
    In the course of the proceedings on this libel, the district judge, before whom the same were had, delivered two opinions. In the first, delivered on making the interlocutory decree, he laid down, among other things, that the intervenor (the claimant) was estopped, as against those libellants, from setting up the invalidity of the sale, because he ratified and affirmed it by his acceptance of the amount of an insurance which he had on the vessel, and by his acceptance and retention of the entire net proceeds of the sale, and by his arrangement with those whom he alleged to be fraudulent purchasers of the vessel at the time he obtained possession of her again—all of which matters appeared in the evidence; that the proceedings taken by the claimant to recover possession of the vessel could not affect the rights of the libellants in that action; and that the libellants were entitled to a lien on the vessel for moneys advanced to her master, Terence Cochran, or otherwise, and which were used to pay for such repairing, supplying, and refitting as was necessary and proper to enable the vessel to proceed to sea with safety, and directed a reference to ascertain the amount of such moneys, reserving the question as to freight moneys.
    Upon the coming in of the referee’s report, and on making the final decree, he delivered another opinion, in which he laid down that the former decision in the case was that the repairs and supplies furnished were, as far as they were necessary, furnished on the credit of the vessel, so as to create a lien on her under the maritime law; that of the items amounting to $2,648 claimed to have been advanced for such repairs, many of them could not be allowed for want of proof that they had anything to do with the repairing or supplying the vessel, and others could not be allowed for other reasons, and he reduced the claimed lien to $865.90 gold, with interest from March 28, 1871, at six per cent.
    In this opinion he also laid down that that court could make no adjudication as to the freight moneys.
    Held,

      in this action, brought against the consignees of the cargo to recover the freight money, that the decree made in the Lamb libel estopped the plaintiffs from impeaching the St. Thomas sale.

    Before Curtis, Ch. J., and Sanford and Freedman, JJ.

      Decided March 26, 1878.
    COURT OP APPEALS. DECISION ON DEPENDANTS’ MOTION TO DISMISS PLAINTIPPS’ APPEAL TO THAT COURT.
    I. Appealability of general term order granting a new trial in a case tried by jury upon an appeal taken from the judgment entered on the verdict, and from an order denying a motion for a new trial.
    1. WHEN NOT APPEALABLE.—Not if any material and controverted question of fact is involved, and the general term granted or might have granted the new trial on such question of fact.

      (a) Actually granting on question of law, effect of.
    1. Although the general term did in fact grant the new trial, solely on questions of law, and so states in its order, yet if the case came before the general term in such form, and, the character of the evidence was such, that a new trial might have been granted on questions of fact, the order is not appealable.

    3. WHEN APPEALABLE.
    1. When the general order affirms the order refusing a new trial on the facts, and reverses the judgment on exception.
    3. Where the appellant is legally entitled to have a verdict directed in his favor.

    1. In the latter case, if upon consideration of the evidence and proceedings at the trial this court should determine that any question of fact passed on by the jury was material, the appeal will still have to be dismissed, unless some well founded material exception was taken at the trial (whether passed on in the general term opinion or not) in which case the order may be affirmed and judgment absolute rendered.

    This is an appeal from a judgment, entered on a verdict in favor of the plaintiffs, and also from an order denying defendants’ motion, made on the judge’s minutes, for a new trial.
    The complaint avers, that in May, 1871, plaintiffs were owners of the brig “ Sarah Harris.” That, during that month, the said vessel, whilst so owned by the plaintiffs, received on board, at the port of Humacoa, Porto-Rico, W. I., a cargo of molasses to be delivered to defendants, at the port of New York, on their paying freight therefor, as per bill of lading.
    That in June, 1871, the vessel arrived at New York and there delivered her cargo to defendants, who, thereupon, received the same, subject to the payment of such freight; but that, though thereto requested, they have refused and still refuse to pay the same.
    .The answer admits that the cargo was transported by the brig, as alleged, and was delivered to and received by defendants; but avers that the voyage was prosecuted under a charter-party between one Terence Cochran, then master and part owner of the vessel, and the firm of Lamb, Storer & Gad; and that the freight to be earned on said voyage, under said charter, was by said master and part owner assigned to James IX and William C. Lamb, as security-for advances made by them to and for the use of the said vessel, its master and owners; that, by the terms of the charter, the freight was made payable to the order of Lamb & Co., and was paid to them by^ defendants, on delivery of the cargo, before the commencement of this action, and before any claim was made, or notice of any claim on the part of the plaintiffs was given.
    The answer further alleges, that in an action in the district court of the United States for the southern district of New York, brought by the said James D. and William C. Lamb, against the said brig “ Sarah Harris,” for the purpose of enforcing a lien upon the said vessel, for advances made and supplies furnished thereto, the said John Harris, for and on behalf of himself and his "co-owner, intervened and answered, alleging that the freight on the voyage of said vessel to New York (being the same voyage mentioned in the complaint herein), was, by the terms of the charter-party under which such voyage was prosecuted, made payable to the order of Lamb & Co., the libellants in said action, and had been paid to defendants in this action, as agents of said libellants, and for their account; that said libellants had no right to such • freight, but were bound to account therefor to the respondent Harris, as owner of said brig, and that the amount thereof should be deducted from any amount which might, in said action, be awarded to the libellants.
    That a decree was afterwards made in said action, whereby it was adjudged that the said libellants were entitled to a lien upon the said vessel for their said advances and supplies; that a reference was ordered to a commissioner to ascertain the amount thereof, who thereupon made a report to the court, in which such amount was ascertained and stated. That the said commissioner, in and by such decree, was directed also to ascertain and report the amount of freight earned and received by said libellants, and to be credited on said advances, and that said commissioner did make his report stating the amount of such freight.
    Upon the trial, it appeared in evidence, on the part of the plaintiffs, that in December, 1870, they were owners of the brig. That in December of that year, she sailed from Annapolis, Nova Scotia, where plaintiffs or one of them resided, under a charter for Montevideo, with a cargo of lumber, and under the command of James Jollymour, as master. That the voyage to Montevideo was never completed, and the plaintiffs received no freight money therefor. That plaintiffs next saw the vessel at Brooklyn, on June 15, 1871, and learned that she had just arrived from Porto Rico, consigned to Whitney & Co., ladén with a cargo of molasses consigned to Burdett & Pond, the defendants. That on June 19,1871, Harris, one of the plaintiffs, had a conversation with Burdett & Pond, and was informed by them that, as agents for Lamb & Co., they had received the freight money of the Sarah Harris, and then had it in their possession. That the plaintiff, Harris, thereupon gave to the defendants'written notice, bearing date on that day, not to part, or in any way deal, with the said freight money, claiming it, on behalf of himself and his co-plaintiff herein, Bichard W. Jones, as owners of the brig.
    It further appeared, on the part of the plaintiffs, that under and by virtue of a decree of the United States district court for the southern district of Hew York, rendered in admiralty on July 5, 1871, in a suit instituted by them against the said brig and against James F. Fulmore and Cochran, the said Fulmore and. Cochran appearing and consenting, it was adjudged that possession of the.said brig be delivered to the. libellants, and that the marshal of the district accordingly placed said vessel, &c., in the custody of John Harris, as owner thereof.
    On the part of the defendants, it appeared that the vessel, after sailing from Annapolis, Hova Scotia, in December, 1870, under command of Jollymour, as master, arrived at St. Thomas in a disabled condition on January 23,1871; that a written application was on that day made by Jollymour, her master, to James D. Lamb, then British consul at that port, for a warrant of survey on "said vessel, which was thereupon issued and executed. Further proceedings of like character were subsequently instituted, which resulted in the condemnation and sale of both vessel and cargo.
    At the sale, the vessel was purchased by Cochran and Fulmore.
    Lamb & Co., who had previously made advances at the “request of Jollymour, for account of the vessel and cargo, received the proceeds of the sale, and in their account rendered, credited $2,776.47 as the proceeds of the cargo, and $2,266.27 as the proceeds of the vessel, charging against such proceeds the advances made and expenses incurred by them, and also two drafts on London, one for £400 sterling at $5, making $2,000, and the other for £120 12s. Id. sterling, making $603.02, which balanced the account.
    The two drafts, with the accounts and documents relating to the sale of both vessel and cargo, and a letter to John Harris, were given by Lamb & Co., to Jollymonr, who took them to Annapolis and there delivered them to John Harris, who received the drafts, sold them, and retained the proceeds.
    Harris subsequently claimed of and received from an insurance company at Annapolis, which had issued a policy of insurance upon the vessel, the full amount thereof,, less the year’s premium therefor. Prior to the receipt of such insurance, his suspicions had been excited as to the fairness, honesty and validity of the proceedings for the condemnation of the vessel, and he communicated them to the underwriters, stating that he believed such proceedings to have been fraudulent, and that he intended to libel the vessel. They declined, however, to join him in any effort to recover her, but paid him the money.
    There was conflict of testimony as to the interview between Harris and the defendants on June 19, 1871, and as to the notice of plaintiffs’ rights and claims, alleged to have then been given by him to defendants. Burdett testified that nothing was said about the freight, on that occasion, to his remembrance ; nor did he remember having told Harris that his firm then had the freight money in their possession, though he admits that they did not part with the money nor credit it to Lamb & Co., with whom they had an open account on their books, before June 28. Pond testified that he had no remembrance that Harris called on defendants during the summer of 1871, and that he never saw the notice of plaintiffs’ claims, which Harris testified that he served on. defendants on June 19. There was also conflict in the evidence as to the good faith and honesty of the proceedings for the condemnation and sale of the vessel.
    The • court submitted to the jury the question, whether the proceedings at St. Thomas for the sale and condemnation of vessel and cargo were honest and fair, charging, in substance, that if not, no title passed by virtue thereof. That if such proceedings were fraudulent, the plaintiffs continued to be the owners, and, as such, were entitled to freight subsequently earned, no matter who might be acting as master. The court further held and charged that the plaintiffs were not estopped from asserting their claim to the freight, either by the decree of the U. S. District Court in favor of Lamb & Co., or by their own acts in receiving and appropriating the drafts remitted by Lamb & Co., and the insurance money on the vessel. That if the jury found that plaintiffs continued to be the owners, notwithstanding the condemnation and sale at St. Thomas, and gave timely notice to defendants of their claim to the freight, they were entitled to recover.
    The court also submitted to the jury the question whether the defendants paid over to Lamb & Co. the amount of such freight before receiving notice of plaintiffs’ claims.
    The jury rendered a verdict in favor of the plaintiffs, and defendants’ motion for a new trial, on the minutes, was denied.
    From the judgment entered on the verdict, and from the order denying such motion, the defendants now appeal.

      Burrill, Davison &Burrill, attorneys, and Chas. A. Davison, of counsel, for appellants, urged :
    —I. It was adjudged in the admiralty suit between Lamb & Co. and the plaintiffs, that, without reference to the question of the validity or invalidity of the proceedings for the condemnation and sale of the “Sarah Harris,” at St. Thomas, the same were, nevertheless, binding upon the plaintiffs so far as Lamb & Co. were concerned ; and the evidence in the present action, showing that advances were made by Lamb & Co. additional to those included in the decree in the admiralty suit, such decree is res adjudicaba on the question of the right of Lamb & Co. to the benefit of the provision in the charter-party giving them a lien on the freight moneys as security therefor. Although the decree in the admiralty suit did not give Lamb & Co. a lien, yet it showed that they'advanced the moneys, and for these moneys the freight was properly pledged by the charter-party. Judgment on a question directly involved is conclusive in a second action between the same parties or their privies, depending on the same question, although the subject-matter of the second action is different from the subject-matter of the first. (Doty v. Brown, 4 N. Y. 71; White v. Coatsworth, 6 Id. 137; Castle v. Noyes, 14 Id. 329; Tompkins v. Hyatt, 28 Id. 347; Newton v. Hook, 48 Id. 676; Treadwell v. Stebbins, 6 Bosw. 538; Jones v. Scriven, 8 Johns. 453; Goddard v. Benson, 15 Abb. Pr. 191; Knauth v. Bassett, 34 Barb. 31). The judgment, sentence, or decree of a court of exclusive jurisdiction is also conclusive between the same parties upon the same matter, although coming incidentally in question in another court for a different purpose, and is not only conclusive of the right which it establishes, but of the fact which it directly decides (Williams v. Armroyd, 7 Cranch, 423).
    II. The decree in the admiralty suit is, at all events, a binding adjudication that there was a balance due Lamb & Co. for advances, amounting to $365.90; and the same never having been paid, and the decree therefor still being in full force and effect, is res ad

      jpdicata as to the question involved in the present action.
    III. Even if the decree in the admiralty suit is to be regarded as an adjudication merely that Cochran and Fullmore’s possession of the vessel was sufficient, under the maritime law, to give Lamb & Co. a lien for such sums as were advanced to them by Lamb & Co. for necessary repairs and supplies, then it must follow that such possession was also sufficiently lawful to enable Cochran and Fullmore to secure the advances in question by a provision in the charter-party to that effect. These advances never having been paid or tendered, the defendants were justified in settling their accounts with Lamb & Co. upon the basis of the right of the latter to the freight moneys.
    IV. The freight moneys received by the defendants were received under the charter-party, which was a contract between the master, acting for the owners, and the defendants, and it was the duty of the defendants to pay that money over according to the terms of that'contract; and if the plaintiffs had any interest in those moneys, there being no privity between them and the defendants, it was their duty not merely to give a notice to the defendants, but to protect them by an injunction order proceeding, to which Lamb & Co. were parties; and defendants were justified, in the absence of such proceeding, in settling their accounts with Lamb & Co. on the basis of the right of the latter to the freight moneys in question.
    V. FTo action can be maintained by the plaintiffs to recover freight money, under or in pursuance of a contract therefor, made by parties who, as they allege, had, fraudulently obtained possession of the vessel.
    VI. The action is founded upon the contract made by the parties alleged to be unlawfully in possession, and can be maintained, if at all, only upon the theory of an affirmation or ratification by the plaintiffs of the entire contract, including the provision securing Lamb & Co. for the advances made by them.
    VII. Assuming all the allegations of fraud alleged by the plaintiffs in reference to the condemnation and sale at St. Thomas, they are estopped from setting up the invalidity of the sale, because they ratified and confirmed it by the acceptance of the net proceeds of the vessel, with the knowledge of the facts constituting the alleged fraud (See opinion of Blatchford, J.).
    VIII. The plaintiffs are also estopped from setting up the invalidity of the sale at St. Thomas, because they ratified and confirmed the same, not only by the acceptance and retention of the net proceeds of the vessel, but by their acceptance and retention of the insurance moneys, and also by the arrangement under which they obtained possession of the vessel from the parties who purchased her at St. Thomas (See opinion of Blatchford, J.). Harris admits the receipt of the insurance moneys ; that the papers which he received from St. Thomas were the basis of his claim against the underwriters, and that when he did so the proceedings in St. Thomas were not satisfactory ; he believed that there was a fraud, and he had an affidavit to that effect made by Monroe, the mate ; and that with full knowledge of the facts communicated by Monroe, and also by Jollymour, with whom he had two interviews, he made his claim upon the company, and obtained from them the insurance. See, also, evidence as to the collusive arrangement by which plaintiffs obtained possession of the vessel.
    IX. By these acts, the plaintiffs are not only estopped from setting up, as against Lamb & Co., the invalidity of the sale or proceedings at St. Thomas, but they affirmed and ratified such sale, and made good, if otherwise defective, the title of Fullmore and Cochran to the vessel; and the rights of Lamb & Co. are to be determined upon the basis that Fullmore and Cochran were the actual and legal owners of the vessel at the time the advances were made.
    X. Plaintiffs, having claimed and recovered against the insurance company as for a constructive total loss, must be held to have abandoned the vessel to the underwriters, and by reason of such abandonment, they parted with and became divested of all title and ownership which they had in the vessel, and cannot, therefore, recover for. the freight money subsequently earned (3 Kent’s Com. 319).
    XI. If, however, the question of the validity, of the proceedings at St. Thomas for the condemnation and sale of the vessel, is to be considered in the present action, then the verdict was not only clearly against the weight of evidence, but a verdict should have been directed in favor of the defendants. The evidence shows that the vessel arrived at St. Thomas in distress, and that the sale of the vessel by the master- was within the well settled rules of the maritime law. In cases of necessity happening during a voyage, the master is by law created agent for the benefit of all concerned, and his acts, done under such circumstances, in the exercise of a sound discretion, are binding upon all parties in interest (Jordan v. Warren Ins. Co., 1 Story C. Ct. 343; Miston v. Lord, 1 Blatchf. 354; The Amelie, 6 Wall. 18; The Glasgow, 1 Swabey, 150; The Australia, Id. 484; The Margaret Mitchell, Id. 382; Gordon v. Massachusetts Fire and Marine Ins. Co., 3 Pick. 264). It may be added that the cases uniformly hold, that where the expense of repairing a vessel will exceed her value, the master is justified in selling. The undisputed evidence in the case, and the. decree in the admiralty suit, establish that the sums expended for necessary repairs at St. Thomas were .nearly double what the brig, &c., realized on the sale. It is to be presumed that this was the full value. The evidence on the subject of the sale confirms this presumption. The court below conceded the fairness of the sale, and there being nothing to show that the brig did not, on the sale, realize its full value, we have, on these undisputed facts, a case made out which justified the sale in question.
    XII. The verdict, however, was at all events so clearly against the weight of evidence, that it should be set aside.

      E. D. McCarthy, attorney, and of counsel, for respondents, urged :
    —I. The plaintiffs were the sole owners of the freight money which she earned (The Henry, Blatch & Howland, 465).
    II. The proceedings of condemnation and sale at St. Thomas were fraudulent and illegal. They gave no authority to the purchasers there, to make any contracts on account of the vessel. This proposition is established by the decree of the admiralty court, and by the verdict of the jury in this court.
    III. Our ownership being established and the freight having been collected by defendants, if they paid it to strangers, they did so at their peril; especially if we told them not to pay it. We did tell them not to pay it, on June 19, 1871, a few days after the vessel had completed her voyage. And defendants did not pay over this money ; they still hold it.
    IV. Defendants, among other things, requested the court to chai’ge : “ That plaintiffs, having claimed and recovered against the insurance company under their policy as for a total loss, must be held to have abandoned the vessel to the underwriters, and by reason of said abandonment, they parted with and became divested of all title and ownership which they may have had in the vessel, and cannot therefore recover for freight moneys subsequently earned (Page v. Millett, 38 N. Y. 31; Brazill v. Isham, 12 Id. 17). This request is valueless, because defendants did not plead that the plaintiffs were not the real parties in interest. It also assumes a fact, which does not exist, that plaintiffs had abandoned their vessel. Neither is it true that plaintiffs collected for a total loss. The amount which they collected from the insurers was less than the sum they afterwards paid to Seamen and others upon the restitution of their vessel. And what was collected from the insurers, was paid after a full statement of facts had been made, so far as they were known. Whether or not the insurers could now recover from the insured the sum paid, because it was paid under a mistake of fact, is a different question to that suggested by the defendants’ request. That the insurers could now treat the vessel as their property, when no abandonment was made nor any demanded—when, indeed, they told Mr. Harris that he could try to recover his vessel if he liked, but that they would not help him, I hardly need deny. But it is no business of defendants, anyhow; they do not plead that plaintiffs are not the real parties in interest (Savage v. Corn Exchange Ins. Co., 4 Bosw. 2). Moreover, the insurance company are bound by the decree of restitution. A decree in rem is binding upon all persons.
    V. As to the defense of former adjudication. On June 5, 1871, James D. Lamb & Co., of St. Thomas, libelled our vessel in the port of New York, for supplies and repairs furnished her at St. Thomas. She had just completed the voyage on which this freight money had been earned. These plaintiffs answered the libel and claimed the vessel, setting up the fraudulent condemnation and sale of her, at St. Thomas, as a defense to the libel. The decision of the court expressly waived the question of fraud and illegality suggested by the answer, on the ground that the vessel was liable for libellant’s betterments upon her, anyhow. Afterwards judgment was given in favor of libellants, in the sum of $365.90. - The court expressly refused to adjudicate upon the freight money, which is the subject of the present action. It will be observed that the libel aforesaid was filed against the vessel, and not against the freight which she had earned. There was no former adjudication of this cause of action, because, (1) The proceedings in admiralty were not had between the same parties as are before this court. To be sure, a decree in rem is binding upon all persons who are interested in the res attached; but these defendants were not interested in any manner in the brig “ Sarah Harris,” or in the lien which the libellants then claimed to have upon her. They would not have been bound by any decree which the court might have entered, nor could they have appealed from it. In a word, the defendants were neither parties nor privies to the parties before the admiralty court. And since they were not bound by the admiralty decree, they can take no advantage from it. The advantages' or disadvantages of the defense “ res adjudicata” are mutual (Greenleaf, §§ 523-4 [8thEd.]). (2) The proceedings in admiralty did not concern the same subject. Neither did they involve or in any manner concern the same state of facts. James D. Lamb '& Co. there sought to enforce a lien upon the brig “ Sarah Harris,” for supplies which they had given to her. The vessel, not. her freight, subsequently earned, was the res proceeded against. The cause of action was for goods sold and delivered upon her credit. By no decree made in that proceeding could the freight money, afterwards earned by her, have been affected. And so the court held. While a court of admiralty may decree against a vessel for supplies furnished her in a foreign port, no decree could be made against freight money in any proceeding whatever. This would be true, though the freight was pending at the time the supplies were furnished. (3) We can go one step further: If James D. Lamb
      & Co. were defendants herein, instead of Bhrdett and Pond, this defense would .not avail them. Whatever claim Lamb & Co. had for any cause of action yet pleaded by them, has been merged in a judgment. Can there be two judgments for one cause of action? Lamb & Co. obtained a judgment in a court of competent jurisdiction, for §365.90, because of supplies furnished to the brig “Sarah Harris.” Would they be permitted to retain also, upon the same claim, the sum of §2,000 more ? Certainly, argument cannot much enlighten, this proposition. Assume that Mr. Cochrane was in lawful command of our vessel, and had authority to assign over to Lamb & Co. her freight moneys (this assumption is against the finding of the jury in this case, as well as the decree of the admiralty court, which adjudged Mr. Cochrane an unlawful purchaser), still Lamb & Co. would be none the better off. They chose to take nothing by this assignment of Cochrane; they proceeded rather against the vessel; they now have a judgment and their claim satisfied. It is difficult to see on what-firmer ground these defendants stand. They are not even in privity to Lamb & Co. I submit, in conclusion, that the only question involvéd on the trial below, was the ownership of the vessel. When that question was "decided in plaintiffs’ favor, this case was also decided in their favor.
   By the Court.—Sanford, J.

—The defendants attempted to set up in their answer, by way of affirmative defense to the plaintiffs’ alleged cause of action, a former adjudication by the district court of the United States, of the respective claims of the plaintiffs and of James D. and William C. Lamb, to the freight money now in controversy. The allegations of' the answer as to such adjudication are insufficient to -constitute a defense; and the proofs adduced in support of them show conclusively that no adjudication with respect to such freight money was made by that court.

It is manifest from the allegations of the answer that the decree of the district court therein referred to was interlocutory merely, and not final; and that it only purported to adjudicate upon the right of the libellants, Lamb & Co., to a lien upon the “Sarah Harris,” for the amount of their advances to and for the use of said vessel, without passing upon the right of the respondent Harris to have the freight money, subsequently earned by the vessel, credited upon such advances.. It is equally clear that neither the insertion in such decree of a clause referring it to a commissioner to ascertain and report the amount of such freight money, nor the report of such commissioner to the court, stating the amount thereof, constitutes a final and conclusive adjudication. To such an adjudication, the confirmation of the report and the rendition of a decree thereon are absolutely essential. The answer contains no averment that the report was ever confirmed, or that a final decree was ever rendered.

But an inspection of such interlocutory decree, as it appears in evidence, discloses the fact that all questions in regard to freight money were thereby expressly reserved until the coming in of such report; and it appears from the record of the final decree, actually rendered thereon, and from the opinion of the court which accompanied it, that inasmuch as the libel was filed only against the vessel, and not against freight money, and as the freight money had not been attached on process, the court could make no adjudication with respect to its in that suit; a&d that accordingly, none such was made. These observations effectually dispose of the question of a former adjudication, as a separate and distnct defense to the action.

But the case presents other issues, upon which as evidence, the judgment of the United States district court has an important bearing. To maintain their action it was essential that the plaintiffs should aver, as in their complaint they did aver, that at the time of the shipment of the cargo, for the transportation whereof they now claim to recover freight, they were the owners of the Sarah Harris. This allegation the defendants, by their answer, deny; averring, on the contrary, that at the time of such shipment, the Sarah Harris was chartered by Terence Cochran, who was then master and part owner of the said vessel, to the firm of Lamb, Storer & Q-ad, to proceed on a voyage to the port of Hew York, with a cargo consigned to defendants; that the freight to be earned on said voyage, under said charter-party, was by the then master and part owner of said vessel, assigned and transferred to the firm of James D. and William C. Lamb, as security for advances made by them, to and for the use of said vessel, and that a provision was inserted in said charter by which said freight was made payable to the order of said Lamb & Co.; and that the freight on said cargo was, in accordance therewith, on the delivery of said cargo, or soon thereafter, and long before the commencement of this action or any claim'or notice of claim on the part of the plaintiffs, paid to the said Lamb & Co.

On the trial, the plaintiffs having adduced evidence tending to establish, prima facie, their ownership of the vessel, the defendants read in evidence depositions and documents, from which it appeared that the brig Sarah Harris, then owned by the plaintiffs, arrived at St. Thomas, in distress, on or about January 23, 1871, in command of James Jollymour, master, who on that day, made written application at the British consulate for a warrant of survey on said vessel, which was thereupon granted. Report having been made thereon recommending the discharge of cargo, for a further examination of the vessel, and the cargo having been discharged pursuant thereto, a second application was made by the master for the appointment of surveyors. Further proceedings were thereupon had, which finally resulted in the sale of both vessel and cargo, on the ground that the vessel was not worth the cost of necessary repairs, and that the interest of all concerned required that such sale should be made. ‘ Terence Cochran and James F. Fulmore purchased the vessel at such sale.

On February 23, 1871, Terence Cochran made formal declaration of ownership, for the registry of said vessel under the British registry acts, declaring himself entitled to be registered as owner of forty-two shares, the other joint owner being James F. Fullmore, for the remaining twenty-two shares. On April 16, 1871, the vessel was chartered by Terence Cochran, as master and agent for owners, to Lamb, Storer and Gad, the charter containing provisions substantially as alleged in defendant’s answer, and particularly, to the effect that the freight should be paid to the order of Lamb & Co., as security for cash advances, and, in case of protest or non-payment, of Cochran’s draft on London, being the draft of £400, remitted by Lamb & Co. to the plaintiffs. The draft was duly protested, and Cochran had notice thereof, before leaving Humacoa. There was no dispute as to the fact or the regularity of such proceedings ; but their necessity, honesty, and good faith was hotly contested, and much testimony was offered, on both sides, bearing upon the question of their validity as fraudulent or otherwise.

The defendants have never disputed their liability as consignees of the cargo, for the freight payable thereon, but they insist, that by reason of the sale above set forth, and the provisions of the charter, under which such freight was earned, Lamb & Co., and not the plaintiffs, were entitled to receive payment from them ; they also insist, that before the commencement of this action, and before any claim was made, on the part of the plaintiffs, or notice to them of the rights or claims of the plaintiffs, they did, in fact, pay it to Lamb & Co. There being no imputation upon them of any fraud or collusion, such payment, if made in good faith, without knowledge or notice of plaintiffs’ claims, would, doubtless, exonerate them from further liability, irrespective of the question whether the sale at St. Thomas, or the proceedings preliminary thereto, were or were not fraudulent and void. But the question as to whether such payment was made by them before receiving notice of plaintiffs’ claims r?as submitted to the jury upon conflicting evidence, and the jury found in favor of the plaintiffs. Without stating, in detail, the evidence upon this point, it is sufficient to say that it fully sustains the finding.

It must, therefore, for the purposes of this appeal, be assumed, ,as the jury found, that the defendants had not paid over to Lamb & Co., but had in hand, the freight money in question, when they received notice of the plaintiffs’ claims. Of course, any subsequent payment of it would be at their peril. It was then competent for them, at their option, to interplead the two adverse claimants, and thus, on paying the money into court, to secure their exoneration from further liability to either,—or, they could, if they saw fit, rely upon the title of either, as against the other. The latter alternative they seem to have adopted, and the question is thus presented, whether the title of the plaintiffs was divested by the condemnation and sale of the vessel, at St. Thomas; or, incidentally, whether the plaintiffs, as against Lamb & Co., whose title the defendants assert, are in any way estopped from disputing the validity of such sale. The defendants insist that such sale was regular and fair; that under it Cochran and.Fulmore acquired valid title to the vessel, and became alone authorized to enter into contracts for its charter and affreightment; that by valid assignment from them, evidenced by the charter-party between Cochran and Lamb, Storer & Grad, Lamb & Co. became entitled to the freight money, now in controversy, as security for the payment of their advances, and in case of protest, of Cochran’s draft; and that, by receiving and retaining the proceeds of the vessel and cargo realized at such sale, as well as by accepting from underwriters the insurance money payable in case of the loss of the vessel, the plaintiffs have estopped themselves from asserting their title thereto, and from disputing the validity of such sale.

The exception taken by defendants to the refusal of the judge to -direct a verdict in their favor distinctly raises the question of such estoppel, and it is by way of evidence bearing upon that question, that the decree rendered in the district court of the United States, in the suit of Lamb & Co. against the “ Sarah Harris,” in which the plaintiffs intervened, becomes of prime importance. If the plaintiffs were estopped, either by receiving and retaining the proceeds of the vessel, or by accepting the insurance money, from subsequently asserting title to her, as against Lamb & Co., the judge erred in submitting to the jury the question of the honesty and validity of the proceedings under which such sale was effected, and in not directing a verdict for the defendants in compliance with their request; and if the question, of such estoppel has been distinctly and decisively adjudicated by the district court of the United States in the suit above referred to, its decree is conclusive, and it is not within the province of this court to review its decision, or to entertain the same question, de now (Birckhead v. Brown, 5 Sandf. 134). After a careful perusal and examination of the record of the proceedings in that suit, as they appear in evidence, I have arrived at the conclusion that the decree does involve an adjudication of these very questions of estoppel. It is ■ true that the subject-matter of that suit is not the same as in this ; that the libellants there were proceeding against the vessel for advances and .supplies, not against the freight earned by her; and that the freight so earned, not having been attached by any process issued in that suit, was not within the jurisdiction of the court. Indeed, it was expressly held in that suit, as has already been stated, that no adjudication with respect to such freight moneys could be made therein. It is also true, that the question of the validity or invalidity of the sale under the proceedings had at St. Thomas was not considered or determined. But the judge before whom the trial of that suit was had, did decide that the claimant, John Harris, representing the plaintiffs here, was estopped, as against the libellants, Lamb & Co., from setting up the invalidity of such sale, because he ratified and affirmed it by his acceptance of the insurance money and by his acceptance and retention of the entire net proceeds of the sale of the vessel, when such proceeds were sent to him by the libellants. He accordingly held that the vessel must be regarded, for the purposes of that suit, as lawfully in the possession of those who actually controlled her, at St. Thomas, when the libellants furnished money there for supplies and repairs to her. Such lawful possession was an essential element in the adjudication thereupon rendered in favor of the libellants, establishing a lien in their favor, on the vessel, for the moneys they advanced or disbursed to her master, Terence Cochran, at St. Thomas, for repairing, supplying, and refitting her. Such an adjudication could not have been rendered, under the maritime law, unless either the sale had been declared valid and effectual, or such estoppel had been successfully invoked and sustained. A material question, therefore, upon which the right of the plaintiffs to recover in this action the freight earned by the Sarah Harris depends, was determined against them in that suit. Had it been determined by the decree there rendered that the sale and all the proceedings preliminary thereto, were fair, honest and untainted by any suspicion of fraud, and that the sale was accordingly valid and effectual, no one would be heard to contend, that as between the plaintiffs and Lamb & Co., such an adjudication would not bar a recovery of freight money assigned or made payable to them by the purchasers at the sale, or by the duly constituted agent of such purchasers. It is difficult to perceive any difference, in principle or effect, between such an adjudication, and one which declares the plaintiffs estopped by their own acts or admissions from disputing the validity of such sale. The case of Birckhead ■». Brown, above cited, is authority for the proposition that “ as between the parties and their privies, a judgment is conclusive as to every question, upon which the right of the plaintiff to recover, or the validity of a defense, in another suit, is found to depend, and upon the determination of which it appears from the record, or is shown by extrinsic proof, that the judgment was, in reality, founded. So long as such judgment remains in force, the parties to it and their privies are estopped from denying either the facts or the law upon which it proceeds.

Without expressing any opinion, therefore, as to whether the receipt by plaintiffs from Lamb & Co., of the proceeds of vessel and cargo, or their receipt from underwriters of the amount of the policy of insurance upon the vessel, did or did not constitute an estoppel, a question as to which the district court of the United States and the court below are at variance, I am of opinion that the court below should have accepted as res adjudioata, and therefore conclusive, the decision of the district court upon that question, and should not have submitted to the jury the question of the honesty or dishonesty of the sale, and proceedings preliminary thereto. Of course, if that question was conclusively determined in favor of defendants by a former adjudication, this action could not be maintained. There was, therefore, in such case, no occasion for submitting to the jury the question as to whether ■payment was made by defendants to Lamb & Co. before notice of plaintiffs* claims. The defendants were entitled to a peremptory instruction to the jury, to find a verdict in their favor, and for error in refusing such instruction, the judgment must be reversed, and a new trial ordered, with costs to abide the event.

Curtis, Oh. J., and Freedman, J., concurred.

       The plaintiffs appealed to the court of appeals, from the order entered on this decision, giving the requisite stipulation. Thereafter, upon plaintiffs’ motion, the general term inserted in its order a statement that the judgment Was reversed and a new trial ordered on questions of law solely. Thereafter, on motion of plaintiffs, this order was made the Order of the court of appeals. Thereafter defendants moved to dismiss the appeal of the plaintiffs to that court. That court denied the motion.
      The opinion Of the court of appeals seemed to the reporters to be so important to the profession as to render it advisable that it should he reported as early as practicable ;■ they therefore obtained the kind permission of Mr. Sickles, the court of appeals reporter, to report it.
      The Opinion is as follows:
      Rapalí.0, J.—Oh the trial, this case was submitted to the júry on t-he question of fact, whether certain proceedings at St. Thomas, by Which thé vessel Of the plaintiff Was condemned and sold, were honest and fair, or were fraudulent. The jury found for the plaintiffs, and the effect of the verdict was to establish the fraud charged. The facts Were controverted.
      The defendants moved upon the minutes for a new trial on the ground £>f the insufficiency of the evidence. The motion was denied and judgment entered on the verdict, and an appeal was taken to the general term from the order denying a new trial, and also from the judgment.
      On these appeals the general term reversed the judgment and ordered a new trial. From the opinion it appears that the reversal was upon the sole ground that a certain decree in admiralty in New York was conclusive upon the plaintiffs as to the validity of the sale at St. Thomas, and a bar to this action.
      The question whether the evidence was sufficient to sustain the finding of the jury that the sale at St. Thomas was fraudulent, was not considered in the opinion, and the court below has inserted in its order of reversal a statement that the reversal was on questions of law only.
      The plaintiffs have appealed to this court, and the defendants now move to dismiss the appeal.
      We have repeatedly held that an appeal to this court will not be entertained where the court below has ordered a new trial in a case tried by jury, if any material and controverted question of fact was involved, and the general term granted, or might have granted, the new trial on such question of fact. But as considerable misapprehension seems still to exist as to the application of this rule, we will further explain it and the reasons upon which it is founded.
      It appears to be supposed by many that the appealability of the order depends upon the question, whether the new trial was actually granted upon questions of fact or of law, and that the declaration of the court below that its decision was based upon questions of law only, is sufficient to render the case appealable. But this is an error. In the first place, we have often held that we will not regard the opinion as conclusive, inasmuch as the result may have been concurred in by some of the judges on their view of the facts, and there is no authority of law for inserting the ground of reversal in the order, as in the case of trials before the court or a referee; that it is incumbent upon the appellant to show error in the decision appealed from, and that an order granting a .hew trial is not shown to be erroneous, by showing that there was no valid exception in the case, provided it was in such a condition that the general term could have reversed upon the facts.
      But aside from these technical grounds there are still more substantial reasons for the rule. Assuming that the court did actually grant the new trial on a question of law, and that this can be made conclusively to appear; yet, if the case came before the general term in such form, and the character of the evidence was such that a new trial might have been granted on questions of fact, the order is not appeal-able to this court, and should not be. To hold otherwise might result in entirely depriving the party against whom the judgment was rendered of the review at general term upon the facts to which the law entitles him.
      . . The present case affords a good illustration. Suppose this court should differ with the general term upon the question of law on which its order for a new trial was founded, what judgment should we render ? If we should reverse the order, the consequence would be an affirmance of the judgment entered on the verdict, and in that event the defendants would have a final judgment against them on the ground that the sale at St. Thomas was fraudulent in fact, without having had any review of the verdict, by the general term, upon the evidence, notwithstanding that the law gave them the right to such review, and that they had taken all the steps required to obtain it.
      If the general term had not been of the opinion that the decree in admiralty was a legal bar to the action, it would beyond doubt have proceeded to perform its duty of examining the question of fact, and might have reversed the judgment and granted a new trial on the ground that the verdict was against the weight of evidence. By the appeal from the order denying the motion for a new trial on the minutes, the questions of fact were brought legitimately before the general term, and it must be presumed that it would have passed upon them had it not been of opinion that the point of law required a review of the judgment. If under such circumstances this court should finally dispose of cases on appeal from orders granting new trials, it is evident that a mistake by a general term in respect to a question of law, would result in entirely depriving the party against whom the judgment was rendered of any review of the verdict upon the evidence. On these grounds we have repeatedly declined to entertain such appeals.
      It may be suggested, that this court could hear the appeal, and if it overruled the point of law upon which the new trial was granted, the case might be sent back to be reheard at general term upon the facts, but there is no precedent for such a practice, it is liable to grave objections, and would be an innovation which we are not inclined to introduce.
      Where exceptions have been taken, and a motion for a new trial has also been made upon the minutes or at special term, the unsuccessful party may waive any further review upon the facts, and appeal to the general term from the judgment. This appeal will bring up the exceptions only, or where an appeal is taken from the order refusing a new trial, as well as from the judgment, the general term may reverse the judgment upon the exceptions, and at the same time affirm the order refusing a new trial upon the facts.
      In either of the cases supposed the order of the general term is appealable. But in no other case will such an appeal lie, in a case tried by a jury, if controverted and material questions of fact are involved, and a motion for a new trial has been made on the evidence.

        The inconvenience and expense of going back for a new. trial, when the Case may ultimately turn upon the question of law, is invariably urged upon the court in cases of this description; but it must not be overlooked, that the inconvenience complained of is not nearly so great a hardship, as" would be inflicted by rendering a final judgment against a party upon a verdict which may have been rendered contrary to the Weight of the evidence, and which would have been set aside by the court at general term had it not rested its order granting a new trial upon an erroneous view of the law. It must also be remembered that orders granting new trials are not final orders, and were in no case appealable to this court until the amendment of the Code, adopted in 1857. The purpose of this amendment -was to obviate the inconvenience now alluded to; but the right of appeal was confined, as we have often decided, to cases depending upon questions of law, except where the trial was before a court or referee. We cannot extend it to cases tried before a jury where questions of fact as well as law are involved.
      In the present case the appellants contend that, although on the trial the case was submitted to the jury, and determined, on a controverted question of fact, yet such question of fact was immaterial; that even if the general term had been of opinion that the verdict on that question was against the weight of the evidence the plaintiffs were nevertheless entitled to judgment upon the uncontroverted facts, unless the decision of the general term upon the question of law can be sustained.
      If they can make this out to the satisfaction of the court the order is doubtless appealable, for then no material question of fact is involved in the case, and a hew trial would be of no avail. Its determination would depend wholly upon the question Of law.
      Wo have looked into the record to ascertain whether there is any color for this proposition. The appellants’ counsel claims that the point should not be determined on a motion, but only on a full hearing, and in this we are inclined to concur with him and not now to decide the point against him unless it is plainly frivolous. Upon an inspection of the return we find that the case is quite voluminous and somewhat complicated, and that it would require an examination on the merits to decide the point. We have therefore concluded to hear the case, if the appellants desire to argue it in view of the intimation we have given.
      If they elect to proceed with the appeal, it will be incumbent upon them to establish that the case is such that they can abandon the finding of the jury, and that they were legally entitled to have a verdict directed in them favor. But if the question of fact upon which the jury passed turns out to have been material, the. appeal will still have to be dismissed, and the appellants incur the further hazard, that if any material exception taken at the trial turns out to have been well founded, whether passed upon in the opinion at general term or not, the order may be affirmed and judgment absolute rendered against the plaintiffs in pursuance of their stipulation.
      Unless the appellants consent to a dismissal of the appeal l^e motion is denied, but without costs.
      All concur.


source: Caselaw Access Project

license: Public Domain

text:
    BENJAMIN DIETZ, Plaintiff and Appellant, v. JOHN J. FARISH, Defendant and Respondent.

      Decided November 5, 1877.
    I. Court of Record.
    1. POWER OVER PROCEEDINGS IN ACTIONS PENDING THEREIN.

      (a) Has inherent power, irrespective of statutory provisions, to modify or vacate and set aside its own orders, judgments, and proceedings, in its discretion.
    1. In whose behalf exercised. May be exercised in behalf of the party by whom and in whose favor the order or judgment was entered, or the proceeding had.
    2. Hmrnple.

      (a) Setting aside taxation of costs so as to allow a MOTION FOR AN EXTRA ALLOWANCE TO 33E MADE.
    1. On motion of the party who inadvertently taxed his costs the court set aside the taxation so as to remove an objection theretofore made under general rule 66 to a 'motion made by him for an extra allowance.
    Before Sedgwick and Sanford, JJ.

      Sigismund Kaufman, attorney, and Lewis Sanders, of counsel, for appellant.

      Shipman, Barlow, Larocque & MacFarland, attorneys, and Sol. Hanford, of counsel, for respondent.
   By the Court.—Sanford, J.

This is an appeal from an order vacating the taxation of costs in the cause at the instance of the defendant, in order to enable him to obviate the objection to his motion for an extra allowance, founded on rule 56 of the general rules,—which provides that applications for such allowances shall, in all cases, be made before final costs are adjusted. It appears by affidavit, that the bill of costs was prematurely presented to the clerk for adjustment, “through inadvertence.” Under section 174 of the Code of Procedure, it was competent for the court, in its discretion, to relieve a party from a judgment, order, or other proceeding taken against him through his inadvertence or excusable neglect; and this provision has been held to authorize the relief of a party from a judgment entered in his favor (Montgomery v. Ellis, 6 How. 326.) But, irrespective of the authority conferred by this section, the power of a court of record to modify, vacate, and set aside its own orders, judgments and proceedings, in its discretion, is too well established to admit of question. ‘ ‘ All the proceedings in an action are under the control and subject to the direction of the court, so long as the action is pending” (Barry v. Mutual Life Insurance Company, 53 N. Y. 536). In the case last cited, an order entered upon an express stipulation in writing, signed by the attorneys for the respective parties, was vacated on the ground that the stipulation had been inadvertently or improvidently executed. The court of appeals held, that all stipulations and agreements between parties to an action and affecting proceedings in it, were within the control of the court in which it was pending, and might be set aside in the discretion of the court, whenever the parties could be restored to the condition in which they would have been, if no agreement had been made. The order now appealed from, restored the parties to this suit to precisely the position in which they would have stood, had no adjustment of costs been made, and enabled an application, resting in discretion, to be heard on its merits, notwithstanding a purely technical objection to such hearing, interposed by way of estoppel. We are of opinion that the order appealed from was in the discretion of the court, and was prop-, erly made.

The appeal should be dismissed, with costs.

Sedgwick, J., concurred.


text:
    IN THE MATTER OF THE PETITION OF ROSWELL D. HATCH.

      Decided November 5, 1877.
    I. Grades of streets, changing of.

    1. Awards for, title thereto disputed.
    (a) JURISDICTION OF SUPERIOR COURT AS TO.
    1. The court, under chapter 53 of the laws of 1853, has no jurisdietion upon petition, to determine a disputed title, and direct payment to one of the claimants.
    1. Such determination can only be by due process of law, at least in this court.
    3. The authority given by the phrase “to be secured, disposed, of, and improved as the superior court shall direct,” is simply a supervisory one over the chamberlain, with respect to his custody, care, management, and invest- „ ment of the fund while it is in his hands, and does not authorize its withdrawal from him.
    H. Definitions.

    1. Due process of law.
    It means a suit instituted and conducted in accordance with the prescribed course of procedure, for determining the title to-property.
    Before Sedgwick and Sanford, JJ.
    The petitioner claims that he is entitled to receive an award for damages to certain premises, made by the assessors on changing the grade of Manhattan street. The award is $1,560, and the petitioner claims it upon the ground that he was the owner of the premises damaged at the time of the injury.
    One John J. Bowes claims to be entitled to the award as the owner of the premises when the change of grade was completed.
    The mayor, aldermen, and commonalty claim to be entitled to $1,223.61 of the award of $1,560, being the assessment on the premises for the expenses of the improvement in question.
    The petitioner procured an order directing the comptroller to pay the award to the city chamberlain, and a reference to take proofs, to the end that the court determine the title of the claimants and of the petitioner and direct the payment of the award to the party entitled to receive it.
    The petitioner based his application for this remedy upon a provision in chap. 52, § 4, Laws of 1852, providing that where the title to the award is disputed it shall be lawful for the city to pay the same to the “chamberlain of the city of 3STew York to be secured, disposed of and improved as the superior court shall direct, and such payment shall be as valid and effectual in all respects as if made to the said owners, parties, &c.” The act further provides that notice of such payment to the chamberlain shall be forthwith given to the superior court. This provision in the act of 1852 is referred to and confirmed. See Laws 1867, p. 1750.
    The referee reported in favor of the city for the amount of its claim, and that the remainder of the award after satisfying the claim of the city be paid to the claimant John J. Bowes.
    Thereupon said Bowes moved, on notice to the petitioner and the Mayor, &c., for a confirmation of the report.
    The court at special term dismissed the application for want of jurisdiction.

      The opinion delivered at special term was as follows :
    Curtis, J. J. It has not been shown to me satisfactorily that this court has the power to order the payment of this award and grant this summary species of relief as sought for in this proceeding. During the interval of more than twenty-five years since the passage of the act, it is not shown to have ever in a single instance attempted to exercise such power. The constitution provides that no person shall be deprived of property without due process of law'. Private property cannot be taken from one person and delivered to another person or applied to the private use of another, except by a suit instituted and conducted in accordance with the prescribed course of procedure for determining the title to property. The institution and conduct of such a suit is what is meant by “ due process of law.” The title to the property in question, this award of $1,560, is sought to be determined by a proceeding unknown to the common law. A conflicting claimant, and possibly the rightful owner of this sum, thus held, is liable to bp deprived of it without the advantage of a suit or proceeding where his rights can be passed upon by a jury or asserted on appeal.
    Moreover, it is not shown that this mode of practice by petition and order is, as far as this court is concerned, authorized by the legislature (Taylor v. Porter, Hill, 147; In re Dodd, 27 N. Y. 632).
    The case here is different from what it may be in the supreme court, which is clothed with the jurisdiction of proceedings for opening and improving streets.
    Where the parties and the proceedings are before that court, and these questions arise in applications in their nature interlocutory and in respect to which there is no question of jurisdiction, this mode of remedy may exist.
    But this court, a stranger to this species of jurisdiction, cannot properly undertake to determine questions of title to property between private parties, except in accordance with such process of law as is known to the administration of justice, and which preserves to suitors the authorized and constitntional modes of asserting and protecting their rights.
    The application to the court, in this matter, must be dismissed for want of jurisdiction.
    Thereupon an order was made dismissing the petition.
    From this order said Bowes appealed.

      William Marsh, attorney, and John D. MacGregor, of counsel, for appellant, urged :
    —I. The statute (Laws of 1852, chap. 52, § 4) which authorizes the award, directs that when the title to it is “ disputed, it shall be lawful for the mayor, aldermen, and commonalty of the city of New York to pay ‘the money ’ to the chamberlain ... to be secured, disposed of, and improved as the superior court shall direct.” This language is clear and positive, free from obscurity or ambiguity, and being the language of the legislature, is ample to confer the jurisdiction asked for in this case. 1. It is not obnoxious to the constitutional inhibition that it deprives any one of property, without due process of law. The award is not ‘ ‘ property ’ ’ in the constitutional sense ; it is a mere gratuity returned by the State for the exercise of its right of eminent domain, and there are no precedents in the common law applicable to it. The same statute which gives the gratuity has a right to prescribe the modes of its payment. The case is analogous to a pension or bounty, granted by the government, which is governed by the act itself, and does not come within the ordinary laws of descent or distribution. It might as well be contended that the act is unconstitutional in respect to the assessments, because it deprives the party assessed of his property without trial by jury. The constitutional provision has never been extended beyond rights which were known to the common law. 2. If any inference is to be derived from the fact that the provision was enacted twenty-five years ago, and that no attempt has ever been made to enforce it, it is quite as logical to say that during that period, in the repeated compilations of the laws relative to the city of Mew York, by the common council, by Judge Davis, Judge Hoffman, and others, this important provision has never before been questioned. The order should therefore be reversed, and the special term directed to hear the motion to confirm the report on the merits.
    II. If, however, this court had no authority to determine the title to the award, it had jurisdiction to direct how it should be “ secured and improved.” This is authority enough to enable the court to award costs against the petitioner when he has asked for relief which is refused. The petitioner Hatch comes voluntarily into court and brings the other parties here. He has submitted himself to its jurisdiction on him, so far as that jurisdiction may extend. This court certainly had some authority in this proceeding. It is a court of general jurisdiction in law and equity, and possesses the power to make a complete disposition of whatever proceeding is brought before it. This power embraces the right to impose costs upon the dismissal of a proceeding for want of jurisdiction against the party who has unwarrantably instituted it. ‘ On dismissal of an action for want of jurisdiction to hear and determine it on its merits, the defendant is entitled to a judgment against the plaintiff for costs” (McMahon v. Mutual Ben. Life Ins. Co., 3 Bosw. 644, approved; Kings v. Poole, 35 Barb. 248; Brocket v. Bush, 18 Abb. Pr. 337). The order should be amended by allowing the respondent his costs.

      James A. Beering, attorney, and of counsel, for respondent, Hatch.

      Wm. O. Whitney, corporation counsel, and Arthur Berry, of counsel, for The Mayor, &c.
   By the Court.—Sanford, J.

—If the provision of chapter 52, section 4, of the Laws of 1852, which ■ authorizes the payment by the corporation, to the chamberlain of the city of Hew York, of an award to unknown owners, “to be secured, disposed of and improved as the superior court shall direct,” can be construed as conferring jurisdiction upon this court, to determine the rights of adverse claimants to such award, and to direct the payment thereof to snch party as shall be adjudged entitled thereto, the statute-referred to is silent as to the mode in which such jurisdiction shall be exercised ; and we are not aware of any principle, authority, or precedent, upon which a proceeding for obtaining such an adjudication can be-summarily instituted by petition, or otherwise than, in the ordinary course of practice, by civil action. The objections to such a summary exercise of jurisdiction are sufficiently indicated in the opinion which accompanied the order appealed from. But it will be-observed that the words “ disposed of,” as employed in the statute, and under which alone it can be insisted that the statute confers authority to direct payment to a claimant, are so connected with the words, “to be secured” and “improved,” as to leave little doubt that the legislature intended to confine the action of this court under the statute, to such disposition of the money, as, in its discretion, may be proper, only so-long as the same remains in the hands of the chamberlain. If the disjunctive “or,” had been used instead of the copulative “and,” there would be some ground for supposing that the disposition of the fund intended might be deemed to include its withdrawal and payment ; but when the authority conferred is in terms confined to a direction as to the securing, disposing of, and improving the fund, the maxim, noscitur a sociis, seems applicable, and we must, therefore, construe the language as importing only a supervisory authority over the chamberlain, with respect to his custody, care, management and investment of the fund, and not as authorizing its withdrawal from his hands.

On this ground, as well as on those suggested in the opinion of the learned chief justice, we think the court should decline to adjudicate upon the rights of claimants, in any such summary manner as is contemplated in this proceeding, and that the order appealed from should, accordingly, be affirmed.

Sedgwick, J., concurred.